Boobs and Babes in the Workplace

by Michael Haberman on January 18, 2011 · 1 comment


Ok, get your mind out of the gutter. This is not a story about a strip club or anything risque like that. This is actually about nursing mothers. Or more specifically about the amendment to the Fair Labor Standards Act that was included in the Patient Protection and Affordable Care Act of 2010 (PPACA). Some of you, especially in smaller companies, may not know that a provision was put into the FLSA that requires you to provide breaktime and space for nursing mothers to be able to express breat milk as needed. When the amendment was first published there was some lack of definition, but basically it required the following:

  • employers must provide a “reasonable break time” for an employee to express breast milk for her nursing child.  The requirement applies for one year after the child’s birth.  There was no limit on the number of the breaks to be provided, and it did not contain any guidance the duration of such breaks.
  • In addition to providing reasonable breaks, the employer must also provide a place where the employee can express breast milk.  The place must be somewhere other than a bathroom and must be “shielded from view and free from intrusion from coworkers and the public.”
  • The law exempts any employer with fewer than 50 employees if providing the break (or the place to express breast milk) would impose an “undue hardship” on the employer.  Under the PPACA, “undue hardship” is defined as “causing the employer significant difficulty or expense” when considered in relation to relevant factors. There was no clear definition of relevant factors.

The Department of Labor realized that there was some confusion over this amendment, so on December 21, 2010 they published a call for comments and guidance on how to implement this amendment. Secretary Hilda Solis said “What the department is seeking to do is to develop guidance for employers that will assist them in complying with this new law and that will support women who choose to continue nursing once they return to work. And with input from the public—including working mothers and employers—we’ll be successful in doing that.”

The USDOL is seeking comments on the reasonableness of breaktimes, such as how many and how long. They note that this may vary depending on the age of the child. According to a SHRM bulletin the factors that maybe considered are:

  • The time it takes to walk to and from the lactation space and the wait, if any, to use the space.
  • Whether the employee has to retrieve her pump and other supplies from another location.
  • Whether the employee will need to unpack and set up her own pump or if a pump is provided for her.
  • The efficiency of the pump used to express milk.
  • Whether there is a sink and running water nearby for an employee to use to wash her hands before pumping and to clean the pump attachments when she is done.
  • The time it takes for the employee to store her milk in a refrigerator or personal cooler.

The DOL is also looking for guidance on what an appropriate “space” would be.

So if you are interested or inclined to provide comment you can view the Federal Register Notice here.  But understand, the law is in effect NOW. If you have female employees who are nursing you need to be complying with providing break times NOW. You need to be providing, as much as possible, the space for nursing mothers NOW. And note, the restroom is not sufficient in most cases.

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{ 1 comment… read it below or add one }

The gold digger February 2, 2011 at 6:24 pm

“shielded from view and free from intrusion from coworkers and the public.”

I wish. I was a Peace Corps volunteer in a women’s co-op. Two of my four co-workers had infants at the same time and there were 135 women in the co-op, many of whom had babies or toddlers. We did not have a meeting where there wasn’t a boob whipped out and a baby attached to it. It did, I admit, keep the babies quiet. But I didn’t understand why it was OK to have babies and boobies at these (interminable) meetings but it wasn’t OK, as the director told me, for me to knit. (I had to accomplish something! We spent 8 hours debating whether our mission would be to serve “Mapuche women” or “young Mapuche women.”)

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