Breastfeeding in the Workplace
Research shows that breastfeeding provides many health benefits for both the mother and her baby. However, in America’s hurried workplaces, it can be difficult for mothers to manage breastfeeding and the requirements of their job. Balancing work and family is an important priority for all employees. This article discusses the legal protections for nursing mothers in the workplace.
Federal Protections for Breastfeeding in the Workplace
Prior to passage of the Affordable Care Act, a/k/a Obama Care, in 2010 there were no Federal laws in place to protect nursing mothers in the workplace. However, among many other things, the Affordable Care Act, amended provisions in the Fair Labor Standards Act (the “FLSA”).
The amendments to the FLSA require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A). Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(B). The breastfeeding provisions of the FLSA are addressed in detail below.
Coverage and Exclusions from the Breastfeeding Workplace Requirements
The FLSA is the Federal law that mandates a minimum wage, requires compensation for overtime, and addresses other workplace issues. All employers covered by the FLSA, regardless of the size of their business, are required to comply with the new breastfeeding provision. However, employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. 29 U.S.C. § 207(r)(3).
Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
However, even where the new breastfeeding provisions apply, there is a severe limitation that could exclude a significant percentage of nursing mothers. Specifically, only employees who are not exempt from section 7, which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk. Employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of Section 7.
As a result, these protections do not apply to independent contractors or to non-hourly employees in management and administrative positions or to employees in highly skilled professions who are not eligible for overtime. Of course, employers routinely misclassify employees as exempt to avoid paying overtime, so it is always worth confirming whether the exempt classification is correct. The exemptions from the FLSA’s overtime requirements and whether or not an employee is exempt or non-exempt is discussed here.
Finally, the requirements of this new breastfeeding provisions are Federal law and it does not preempt any state law that provides greater protections to employees. 29 U.S.C. § 207(r)(4). For example, state laws may provide compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth. Unfortunately, as discussed below, Florida law does not provide greater protections to employees.
Locations that Must be Provided for Employees to Breastfeed
The amendments to the FLSA require employers to provide a space for a nursing employee “each time such employee has need to express the milk.” If there is no employee with a need to express breast milk, then the employer would not have an obligation to provide a space.
However, if there is an employee with a need to express breast milk, a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient, provided that the space is shielded from view, and free from any intrusion from co-workers and the public.
A bathroom, even if private, is not a permissible location under the law. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is the best way to meet their obligations under the law.
Time and Frequency of Breaks to Breastfeed
Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. Consequently, the frequency of breaks needed to breastfeed, as well as the duration of each break, will likely vary based on the individual circumstances of the mother.
Compensation for Breaks to Breastfeed
Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. 29 U.S.C. § 207(r)(2). However, where employers already provide compensated breaks, an employee who uses that break time to breastfeed must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty, or else the time must be compensated as work time, applies.
Florida Protections for Breastfeeding
As mentioned above, in Florida, there is limited protection for nursing mothers. Fla. Stat. § 383.015, allows a mother to breastfeed in any public or private location. Specifically, Florida law provides:
“The breastfeeding of a baby is an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values, and in furtherance of this goal [a] mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding.”
Fla. Stat. § 383.015(1). The only additional protection afforded nursing mothers in Florida is that breastfeeding is excluded from various sexual offenses, such as lewdness, indecent exposure and sexual conduct. Although Fla. Stat. § 383.015 does not directly address the workplace, since “[a] mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be,” there is no reason to assume that the law would not apply in the workplace.
However, whatever protections Florida’s law does provide, that protection is not greater than that provided under the amendments to the FLSA discussed above. Therefore, for employees in Florida, the FLSA is the best protection for nursing mothers at work, provided they are non-exempt (hourly) employees.