June 11, 2010Client Alert

Nursing Mothers Get a Break

Section 4207 of the Patient Protection and Affordable Care Act of 2010 (“Section 4207”) amended the Fair Labor Standards Act (“FLSA”) to require employers to provide unpaid “reasonable break time” to nursing mothers.  Effective immediately, Section 4207 grants employees who are currently nursing a child the opportunity to express breast milk as needed.  Although Section 4207 does not apply to employees who are exempt from overtime provisions under the FLSA, the Department of Labor encourages employers to provide break time to all nursing mothers.


Reasonable Break Time

Under Section 4207, an employer must afford nursing mothers reasonable break time to express breast milk for a nursing child for at least one year after the child’s birth.  Rather than allowing employers to regulate the frequency of nursing breaks, Section 4207 provides that employers must afford nursing mothers such a break each time they need to express milk.  Section 4207 does not define “reasonable break time,” but the Section does make clear that employers are not required to compensate employees for these breaks.  Therefore, employers may deduct wages from non-exempt employees for the time spent on nursing breaks.


Private Break Area

In addition to providing nursing mothers with a reasonable amount of time to express breast milk, employers must dedicate a private place for employees to take breaks for this purpose.  This private place must be “shielded from view and free from intrusion from coworkers and the public.”  Section 4207 specifies that employers must find a location other than a bathroom for employees to take nursing breaks.


Covered Employers

Section 4207 does not apply to all employers.  Employers that employ fewer than fifty employees are not required to provide breaks to nursing mothers if the employers can show that the requirements under Section 4207 would impose an undue hardship.  To show undue hardship, an employer must demonstrate that the requirements would pose significant difficulty or expense when considered in relation to the employer’s size, financial resources, nature, or business structure.  The undue hardship exception does not apply to employers with fifty or more employees; these employers must all comply with Section 4207.


State Laws Still Apply

Section 4207 does not preempt comparable state laws that require nursing breaks for employees.  Therefore, employers must continue to abide by any provision of a state law that provides greater protection for nursing mothers in the workplace.  The State of Wisconsin does not have a law related to nursing mothers in the workplace. 


Employers’ Next Steps
Section 4207 does not dictate how employers should go about implementing the Section’s new requirement of unpaid breaks for nursing mothers.  We suggest, however, that employers take the following steps to ensure compliance with Section 4207 requirements:


  •  Determine whether applicable state law provides greater protection for nursing mothers than does Section 4207.


  • Update the company policy and handbook to reflect the requirements under Section 4207, while accounting for more protective provisions in applicable state law.


  • Train all management personnel to ensure that they are familiar with the requirements of Section 4207 and any applicable state laws.


  • Identify appropriate workplace locations that may serve as private break rooms or other private areas for nursing mothers.
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