Protection for Nursing Mothers

The Affordable Care Act, commonly called Obamacare, became law in March of 2010. Part of that law amended the Fair Labor Standards Act or FLSA to provide for special work accommodations and protections for nursing mothers. If both the employee and employer are covered, then reasonable break times must be provided to express milk. Employers must also provide a private place, other than a bathroom, for this purpose. There is no set minimum or maximum duration or number of times that breaks must be provided; however, there is no requirement that employees be paid during the breaks unless break times are already compensated and that time is used by the employee. This accommodation is required for at least one year following the birth of a child.

The space provided by an employer does not have to be fancy and does not have to be solely dedicated to the expressing of milk. It only has to be private, meaning shielded from view and free from any accidental intrusion by co-workers or the public. The space may also be temporary as long as it is functional. Under the Act, a bathroom is not acceptable.

Employers with fewer than 50 employees are not covered provided that they can show an undue hardship.  Also, nursing mothers who are exempt employees under the FLSA are not required to be given break times. For example, employees who are paid a salary of least $455 per week and work as executive, administrative, professional, computer, outside sales or highly compensated personnel are generally exempt.

The following general definitions may be helpful in understanding whether you may be exempt.  Executive employees are those employees whose primary duty is to manage the company or a division of the company for which they work. Administrative employees are those that perform office or non-manual work directly related to the management or general business operations of the company or the company’s customers. Professional employees are employees whose work requires advanced intellectual knowledge in a field of science or learning and requires regular exercise of discretion and judgment. Computer employees are exempt if they are either paid at least $455 per week or not less than $27.63 per hour and work as a computer systems analyst, computer programmer, software engineer or other such job. Outside sales employees are exempt if they primarily make sales or obtain orders or contracts for services and regularly do their work away from the company’s place of business. Highly compensated employees are those that have a total annual compensation of $100,000 or more and perform at least one of the duties of the executive, administrative or professional employees. A more detailed explanation of who is and who is not exempt under the FLSA is covered in our section on “Overtime and Wage Laws.”

This law under the Affordable Care Act is meant to be a minimum standard, meaning that if the state you are in has laws that are more accommodating, those laws will apply first.

If you have a question about your rights as a nursing mother, please contact us so that we can help you understand your rights. To further discuss your situation, you can call us toll free at (706) 769-4410, send us an e-mail, or fill out a consultation request form and we will contact you as soon as possible.