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April 07, 2010
Healthcare Reform Update: Breastfeeding/Expressing Requirements for Employers
The 2010 Healthcare Reform Act amended the Fair Labor Standards Act (FLSA) by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time the employee has need to express milk.

Under the Act, employers must now 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. The FLSA does not require employers to pay employees for such break time.

Exceptions. The requirements do not apply to employers with less than 50 employees, 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. The FLSA's provisions do not preempt a state law that provides greater protections to employees.

Most states have passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Some state laws require that employers provide reasonable time for an employee to breastfeed or express breast milk, or to coordinate designated break times to coincide with the employee's need to breastfeed or express breast milk.

Accommodating breastfeeding and expressing breast milk. In order to allow employees to take advantage of the many health benefits of breastfeeding, employers may wish to consider drafting a written policy on breastfeeding and expressing breast milk in the workplace The policy should include elements such as:

  • Flexible work schedules to provide time for expression of milk;
  • Provision of an accessible location allowing privacy (e.g., shielded from view and free from intrusion from coworkers and the public, a lock on the door);
  • Access to a nearby clean and safe water source and a sink for washing hands and rinsing out any breast-pump equipment; and
  • Access to hygienic/refrigerated storage alternatives for the mother to store her breast milk

It is generally accepted that bathrooms are not sanitary, acceptable places for breastfeeding or expressing breast milk. Therefore, federal law requires that employers must not designate employee or public bathrooms as the location for breastfeeding or expressing breast milk.

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