Leah M. Stiegler

Leah M. Stiegler
Associate

Victor O. Cardwell

Victor O. Cardwell
Principal and Chairman

An employer recently called with a question about nursing breaks. An employee returning from parental leave wanted daily breaks to go home to nurse her newborn. What does the law require regarding allowing mothers to nurse their children?

Requirements for Nursing Breaks

Federal law (as enforced under the Fair Labor Standards Act (FLSA)) requires employers to provide:

  1. reasonable break times for an employee to express breast milk;
  2. in a location that is “shielded from view and free from intrusion from coworkers and the public (but not a bathroom);
  3. for one year after the child’s birth;
  4. each time the employee needs to express milk.

Let’s break down the terms and issues!

Eligibility

  • This break-time requirement applies to non-exempt employees. However, while the law technically does not apply to exempt employees – do not limit this break on that basis.
  • Employers with fewer than 50 employees (when counting every employee in every location) may be able to argue it’s an “undue hardship” to provide this break time. However, such hardship is a high burden. Speaking with legal counsel before exercising this position is advised.
  • Before denying a request, you should consider how it will impact your employee relations or even your public image.

Time Requirements

  • The frequency of the breaks and the duration of the breaks could vary. Therefore employers should not put hard limits on these.
  • Be careful! Ask yourself if you want to be the person who says, “No, you’ve taken too much time to take care of your family?” Most of us would say that is a bad position to be in. Don’t do it!

Compensation

  • If the employee is completely relieved of duties during this break time, technically the break is unpaid and the employer can require the employee to clock in and out.
  • However, if the employer already provides compensated breaks, such as 15 or 20 minute breaks in the morning and afternoon, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. Be careful.

Location

  • The location does not have to be a permanent space dedicated to allowing employees to express milk. It simply must be a space, such as an empty office, a conference room, or a break room that can be easily converted for this use when needed. The location cannot be a restroom.

So our clients and readers can review or add their own Break Time for Nursing Mother’s Policy, we’ve included a sample policy below. This is an example, and is not a policy that should be implemented without editing and reviewing to fit your particular circumstances!


Break Time for Nursing Mothers

[EMPLOYER] provides reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth, each time such employee has the need to express milk. The frequency and duration of each break may vary for each employee. A place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, will be provided for these break times. Employees may store breast milk in any way/place needed, including the breakroom refrigerators. All bottles should be properly labeled and/or initialed by the employee or stored in a secure manner as desired by the employee.

Employees, if possible, should use normal break times to express breast milk. Employees must notify their supervisors before taking their nursing break to ensure proper coverage for their duties occurs. Non-exempt employees will be paid for breaks totaling up to 20 minutes per day. Breaks over 20 minutes per day may not be paid for non-exempt employees. The employee will clock out to take this break and then clock back in upon return to their duties. An adjustment will be made to the employee’s time, as appropriate, to assure compensation, if applicable, for the allowed paid break time.

Additional considerations that are not addressed in this policy are set forth below:

Employees with concerns, questions, or complaints about this policy should contact Human Resources. There is absolutely no retaliation for employees exercising their rights to breastfeed or making bonafide complaints regarding this process.


It is important to note some states have separate laws on this issue that provide greater protections for nursing mothers. Virginia currently does not have additional laws regarding nursing breaks, but employers operating in jurisdictions with more protective state laws should provide the greater protections.

To answer the original question, sending an employee home every day to breastfeed is not exactly covered! However, it certainly raises questions you would want to discuss with legal counsel before denying the request.

As always, the Woods Rogers Labor and Employment team is here to help you through this process.