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FLSA Amended to Mandate Breaks for Nursing Mothers

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Although it has largely flown under the radar, a section of the Patient Protection and Affordable Care Act recently signed by President Obama amended the Fair Labor Standards Act (“FLSA”) to require employers to provide rest breaks and space for employees who are nursing mothers to express breast milk. Employers need not pay for the break. No minimum break length is specified, but the break must be a “reasonable” length of time. Employers are required to provide places for the breaks that are “shielded from view and free from intrusion from coworkers and the public,” and the location cannot be a bathroom. The employee must be permitted to take a break each time she needs to express milk. The break requirement extends for one year after the child is born.

An employer with fewer than 50 workers would be excluded from the requirement if allowing the breaks would cause “undue hardship.” This condition is met only if the employer will face significant difficulty or expense in light of the employer's size, financial resources, nature or business structure — a fairly rigorous standard.

Until this amendment, rest breaks were regulated by state law and the FLSA did not require employers to provide breaks or meal periods to workers. The amendment to the FLSA (29 U.S.C. section 207(r)(1)), changes that.

The amendment is effective immediately.