Via notice published December 21, 2010, the United States Department of Labor’s Wage & Hour Division (“WHD”) sought commentary from the public regarding WHD’s preliminary interpretations of the new lactation break requirement added to the Fair Labor Standards Act (“FLSA”) on March 23, 2010 as part of the Patient Protection and Affordable Care Act.  These preliminary interpretations are available on this dedicated web page.

The WHD’s request for commentary seeks public input as to key issues raised by the new legislation, including: (1) the compensability of break time for lactating mothers; (2) factors in determining reasonableness of break times; (3) what constitutes an adequate place to express breast milk; and (4) the specific contours of the undue hardship exemption for small employers.  Specifically, the WHD sought comment concerning::

·        Its position that the FLSA’s new lactation provisions only apply to employees otherwise covered by overtime laws, i.e. only non-exempt employees who work for employers covered by the FLSA.

·        Its position that if an employer already provides paid breaks to employees, then a nursing mother who uses that allotted time to express milk “must be paid in the same way that other employees are compensated for break time.”

·        Its position that lactating mothers “typically will need breaks to express milk two to three times during an eight-hour shift,” with the act of expressing breast milk typically taking approximately 15 to 20 minutes per act.

·        Its position that an employer has no obligation to maintain a “permanent, dedicated space” for expressing milk, but rather part-time conversion of certain workspaces is appropriate: managers’ offices, storage spaces, utility closets, etc. (except bathrooms are never deemed appropriate). Further, the WHD’s position that employers may provide a space created by partitions, curtains, and/or by covering windows, or by utilizing signs to indicate occupation or by providing a lock on a door in order to ensure privacy.

·        Its position that the exemption for small employers with fifty (50) employees or less where providing a lactation space would cause an undue hardship is to be treated as an affirmative defense which must be proved by the employer. Further, the WHD’s position that “undue hardship” should be analyzed under the same standard as the Americans with Disabilities Act.

·        Its position that expressing milk would not be covered under the FMLA in most instances.

The notice also touches upon the role of the WHD as an enforcement agency of the new law, as well as the relationship of the new lactation requirements to the Family and Medical Leave Act (“FMLA”).

Demonstrating its awareness of the wide variety of workplace environments that exist, and the ease with which enforcement could impose hardships on various classes of businesses based upon the current interpretation, the WHD has indefinitely delayed creating final rules interpreting the new lactation legislation until it has had an opportunity to examine the most appropriate rules “based on [the WHD’s] experience administering and enforcing the break time requirement and the comments received in response to [its] Request for Information.” The WHD’s requested commentary period regarding this legislation will run for sixty (60) days, or until February 19, 2011.

Jackson Lewis attorneys frequently counsel employers regarding developing appropriate lactation policies tailored to any manner of workplaces, and are available to guide employers in complying with their obligation to provide adequate lactation spaces under this new law. Vitally, many states already have similar laws that cover all employees and impose broader obligations than under federal law.