One of the lesser known employer responsibilities under the ACA was to require employers to accommodate lactating employees with both break time for expressing milk and a private place to do so. This requirement was codified in the Fair Labor Standards Act (”FLSA”), the law that requires the payment of minimum wage and overtime, at 29 U.S.C. § 207(r). Further, there are some states that have enacted similar protections or have extended rights to lactating employees that exceed these federal protections.
Under the FLSA, employers with over 50 employees are required to provide for reasonable break time for a mother to express milk for her child each time she needs to until the child turns one year old. Pumping break time may be uncompensated if the employee is relieved of all duty during the break. However, to avoid claims of disparate treatment, employers should treat pumping breaks in the same manner that they treat other breaks – meaning, if an employer allows employees to take paid breaks for things like smoking or taking a walk, then lactating employees should be similarly accommodated.
The FLSA’s language regarding the pumping space specifically states that the space cannot be a bathroom. Other than that, the law requires only that the space be shielded from view, free from intrusion by coworkers and the public, and that it be available each time the employee needs to use it. This means an office, conference room, or storage space can all become pumping spaces so long as the employee can access it as needed. There is no obligation to permanently reserve the space or to provide milk storage, but the employee should be allowed to use community refrigerators where other food is stored.
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