Employment Law 101: Worksite Lactation Breaks

by Gray Reed & McGraw
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Who, What, Why . . .

Who does it apply to:

According to the Patient Protection and Affordable Care Act, all employers with more than 50 employees nationwide are required to comply. Employers with less than 50 employees may not comply if it would be an undue hardship.

What am I supposed to do:

Employers must offer reasonable time for breaks to nursing mothers who need to express milk and must provide an appropriate space to do so.

Who is entitled to the breaks:

Employees who are not exempt from overtime. (See the EH Edition on Overtime Exemptions for more information on that topic). Employers are not required to offer the breaks to exempt employees.

How many breaks per day must be given:

There is not a specific requirement in the law. The employer must offer a break “each time the employee has need to express the milk.” According to the US Department of Health and Human Services (“DHHS”), an average employee will have the need to express milk two to three times per day for 15 to 20 minutes excluding set up and take down time and the convenience of the location. Employers should err on the side of caution granting as much time as necessary.

Do I have to pay:

Strictly speaking, no. Non-exempt employees may be asked to clock out unless they use an already offered, paid, work break for lactation. Employers who choose to offer lactation breaks to exempt employees, however, may not dock their pay for the time.

What type of space is required:

The law requires that the space be shielded from view and free from intrusion by co-workers and the public. The space may be temporary and created when needed by an employee. A lock is not required, but is suggested to avoid intrusion. It is important to note, however, that the space must be offered in any location where an employee requiring lactation breaks is stationed – even if there is only one employee at the location.

How long do I have to offer breaks:

Breaks must be offered up to one year following the birth of the employee’s child.

What is sufficient to show “undue hardship”:

As noted above, employers with fewer than 50 employees nationwide who show undue hardship may opt out of the Act. There have been no cases reported on this subject yet, but employers must at least show “significant difficulty or expense, when considered in relation to size, financial resources, nature or structure of the employer’s business.” The Department of Labor (“DOL”) openly states it believes this to be a stringent standard available in very limited circumstances.

Are there any signs to post:

There are no employer posting or notice requirements in the law. The DOL encourages employees to provide advance notice to their employers so the employer can prepare for compliance. Employers can likewise ask a pregnant employee whether she intends to take lactation breaks after the baby is born.

Is there any upside:

While many employers will perceive this as one more encroachment upon their ability to get work done, there may be tangible monetary benefits other than helping employee morale. According to the DHHS, employers are likely to have lower health insurance claims because breastfed infants have up to three times fewer medical visits. Turnover rates are likely to be lower because 86-92% of breastfeeding employees return to work when offered lactation break options versus 59% otherwise.

Common Situations:

Ewww, not there: Commodes Unlimited is splitting at the seams with staff. There are very limited spaces available to offer for worksite lactation breaks. The company puts a lock on the women’s restroom to create the space. It complies with the law in every respect . . . except one. The law specifically states the space for lactation breaks cannot be a restroom. Sanitation is a concern.

Seriously? How can I do that: United Parcel Express has delivery drivers in trucks all day, every day. Janet, a delivery driver, has recently returned from having a child and would like to express milk. The company has more than 50 employees, but no real means to provide a space. What is it supposed to do? Comply. The law has no pity for inconvenient businesses. I searched on-line to try to find ideas for a scenario like this. The only thing I found about shipping companies was a UPS driver’s use of dressing rooms in various shops along her route. That hardly sounds compliant. Through a little looking, I did discover there appear to be “Workplace Lactation Consultants” who may be able to help with troublesome situations.

What should I do:

Good:

Consult with employees who plan to return to work after giving birth. Work toward a mutually agreeable solution. If you have buy-in from the employee, you are unlikely to have a complaint from the employee or the DOL. Create a temporary place to meet the employee’s needs and offer adequate time for the employee to express milk daily. If you plan to claim undue hardship, please consult with your legal counsel about the appropriate path.

Better:

Create a permanent space for employees to express milk. Consult with a lactation consultant to work through more difficult workplace scenarios such as traveling employees.

Best:

Consider becoming a recognized Texas “Mother-Friendly Business.” In addition to the requirements of the federal law, employers only have to add access to a clean, safe water source and a sink in the space and a hygienic place to store expressed milk to meet the standard.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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