Monday, July 26, 2010

DOL provides guidance on break time for nursing moms

One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. Unlike many provisions of the health care bill, which do not go into effect for several years, break times for nursing mothers went into effect as soon as President Obama signed the bill into law on March 23, 2010.

Last Friday, the Department of Labor’s Wage & Hour Division published Fact Sheet #73, which provides guidance to employers implementing this new break time requirement. Here’s the highlights:

  • Employers must 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.” The frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.

  • Employers must 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.” A bathroom, even if private, is not allowed. The location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed. 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.

  • This break time requirement only applies to non-exempt employees.

  • Employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business).

  • Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Because Ohio does not have its own law that requires lactation breaks, Ohio employers should pay careful attention to this provision of the health care bill and the new requirements it imposes on all but the smallest of our state’s employers.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or