The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect. While there was little guidance about the law at that time, the Department of Labor has provided a little more direction since then. However, there are still no formal implementing rules for the requirement.

The health care reform law passed in 2010 amended the Fair Labor Standards Act requiring “reasonable” break time for employees who are nursing mothers. The general requirements are as follows:

• The employee must be a non-exempt employee under the FLSA.
• The nursing mother’s child must be 1 year old or younger.
• Breaks must be provided as frequently as needed by the nursing mother.
• The duration of the breaks “may vary” as needed but no specified time period is set forth in any Department of Labor guidance.
• A place must be provided that is “shielded from view and free from intrusion from coworkers and the public” that is not a bathroom. The space need not be designated for this purpose at all times, but it must be available when the nursing mother needs it. If the employer has no nursing mothers, the employer does not need to maintain dedicated space for nursing mothers.

This federal law does not apply to employers with fewer than 50 employees if compliance would impose an undue hardship, looking at the difficulty or expense of compliance given the size, financial resources, nature, and structure of the employers’ business. In determining if an employer has 50 employees, all employees, regardless of work site, are counted.

There was some confusion about compensation for nursing mother breaks. Employers are not required to compensate employees for these breaks, but if they provide paid break time, they must compensate an employee who uses that time to express milk the same way as other employees are compensated for their break time. If an employee is not released from all job duties, she must be compensated. Many employers follow the general practice that breaks under 20 minutes are compensated, but longer breaks are not. Whether an employer is required to compensate an employee during her break, however, becomes more complicated if the nursing mother takes longer than a 20 minute break. The Department of Labor has not yet released more specific guidance on this topic.

This law does not preempt state laws that provide greater protection to nursing mothers. And some state laws may provide break time for exempt employees or for employees beyond 1 year after the child’s birth or require that smaller employers provide break time. For Ohio employers, Ohio’s nursing mother protection statute, is more general, requiring places of public accommodation permit a mother to breastfeed in any place of public accommodation where the mother is permitted. Employers with places of public accommodation (restaurants, stores, banks, etc.) should be mindful of this statute as well.