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Break Time For Nursing Mothers: A Little Known Provision Of The Affordable Care Act

In March 2010 a little known provision of the Affordable Care Act amended the Fair Labor Standard Act (“FLSA”) overtime rules to require a “reasonable break time” for nursing mothers who are not exempt from overtime pay requirements to express breast milk. Even before this federal law went into effect, Mississippi had been a leader in adopting legislation to protect a mother’s right to nurse her child, including in the workplace, when it enacted several laws during the 2006 regular legislative session.

The federal FLSA amendment requires the break time each time the non-exempt nursing mother needs to express breast milk for one year after a child’s birth. The location for the break time cannot be a restroom and must be an area that “is sheilded from view and free from intrusion from coworkers and the public,” although it does not have to be a dedicated space. If it is temporary, however, it must be available when needed by the nursing mother. A vacant room with a lock on the door should suffice as long as it meets the location requirements of the federal rule.

The federal law does not require the nursing employee to be paid for the work time spent in breast milk expression. On the other hand, the regulations promulgated under the amendment make clear that for employers who already provide paid breaks, an employee using such time to express breast milk must be compensated in the same manner as other employees on paid breaks are compensated. The general requirement under the FLSA for non-exempt employees to be completely relieved from duty or else the time must be compensated as work time also applies to time spent expressing breast milk.

Finally, under the FLSA amendment and related regulations, all employers covered by the FLSA are subject to the break-time-for-nursing-mothers requirement. An employer that has less than 50 employees is not subject to the requirements “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Given that the FLSA amendment is intended to benefit employees, both the Department of Labor and federal and state court likely will the undue hardship exception narrowly.

Under the regulations promulgated by the Department of Labor’s Wage and Hour Division regarding such break time, all employees who work for an employer covered by the FLSA are counted in determining the 50-employee threshhold. This is true regardless of whether they work at the same worksite, and including full-time and part-time employees, and “any other individuals who meet the FLSA definition of employee….” If no employees of a given employer need to express breat milk, the employer has no obligation to provide space for such an activity. Of course, this situation can change. Covered employers should keep in mind the gender discrimination prohibitions of Title VII of the 1964 Civil Rights Act. The U.S. Equal Employment Opportunity Commission likely would view as gender-based discrimination refusing to hire a female because she either is or could become a nursing mother or firing or taking other negative action against such a female.

Mississippi statutes are found in the Mississippi Code of 1972, as it as amended in 2006 (the “Mississippi Code”). Under section 17-25-7 of the Mississippi Code, counties and municipalities are prohibited from enacting any ordinance that restricts a woman’s “right to breast-feed her child….” Section 17-25-9 permits a mother to breast feed “in any location, public or private, where the mother is otherwise authorized to be.” This law applies regardless of whether “the mother’s breast or any part of it is covered during or incidental to the breast-feeding.”

The employment-specific Mississippi statute on breastfeeding, section 71-1-55 of the Mississippi Code, states that employers cannot prohibit their employees from “expressing breast milk during any meal period or other break period provided by the employer.”

General rules of construing federal and state statutes on the same subject provide that where the federal law provides more protection, the federal law applies rather than the state rule; if the state statute provides more protection, then it applies rather than the federal law. Neither the FLSA amendment, the Mississippi breast-feeding and related laws, nor the interaction of the two has been addressed by a state or federal court in Mississippi in a published opinion. Applying the general rules of statutory construction suggests that in Mississippi, there probably is no “number of employees” limit on the application of the Mississippi’s law requiring employers to allow their employees to express breast milk during meal or break periods. Nor is Mississippi’s workplace law limited to non-exempt employes. On the other hand, the federal law requiring that a place other than a restroom that is shielded from view and access by others likely applies in Mississippi to non-exempt employees who are expressing breast milk.

The Department of Labor has some helpful fact sheets and overviews of the FSLA requirement that can be accessed here. The Centers for Disease Control and Prevention has a toolkit for creating a breastfeeing support program at worksites here.

Ann Bowden-Hollis