Federal Register, Volume 75 Issue 244 (Tuesday, December 21, 2010)

[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Notices]
[Pages 80073-80079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31959]

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DEPARTMENT OF LABOR

Wage and Hour Division

RIN 1235-ZA00

Reasonable Break Time for Nursing Mothers

AGENCY: Wage and Hour Division, United States Department of Labor.

ACTION: Request for Information from the public.

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SUMMARY: This notice is a request for information from the public
regarding the recent amendment to the Fair Labor Standards Act (FLSA)
that requires employers to provide reasonable break time and a place
for nursing mothers to express breast milk for one year after their
child's birth. The Department of Labor (``the Department'') administers
and enforces the FLSA through its Wage and Hour Division. Contained in
this notice are the Department's preliminary interpretations of the new
break time amendment to the FLSA. The Department seeks information and
comments for its review on various issues addressed in this notice, as
it considers how best to help employers and employees understand the
requirements of the break time for nursing mothers law.
The break time requirement that is now part of the FLSA is set
forth in Section 4207 of the Patient Protection and Affordable Care
Act, Public Law 111-148 (``Affordable Care Act''). The provision
requires employers to provide ``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 need to express the milk.''
Employers are also required to provide ``a place, other than a
bathroom, that is shielded from view and free from intrusion from
coworkers and the public, which may be used by an employee to express
breast milk.'' See 29 U.S.C. 207(r).
The break time requirement became effective when the Affordable
Care Act was signed into law on March 23, 2010. To assist employers
with complying with the new law, the Department has issued Wage and
Hour Fact Sheet 73: ``Break Time for Nursing Mothers under the
FLSA'' at http://www.dol.gov/whd/regs/compliance/whdfs73.pdf. The
Department has also posted Frequently Asked Questions (FAQs) on its Web
site that reiterate the information provided in the Fact Sheet in a
different format. Until the Department issues final guidance, the
Department's enforcement will be based on the statutory language and
the guidance provided in WHD Fact Sheet 73 and the associated
FAQs.
Employers, employees, and other stakeholders have requested
additional guidance from the Department about the law's requirements
and the Department wants to provide an opportunity for the public to
submit information and comments for its consideration. The Department
will consider the information and comments received in response to this
Request for Information in formulating further guidance for the
regulated community on complying with the new break time requirement.
Until any such further guidance is issued, the RFI provides useful
information for employers to consider in establishing policies for
nursing employees.
At this time, the Department does not plan to issue regulations
implementing this provision. Because of the wide variety of workplace
environments, work schedules, and individual factors that will impact
the number and length of breaks required by a nursing mother, as well
as the manner in which an employer complies with break time
requirement, the Department believes that regulations may not be the
most useful or effective means for providing initial guidance to
employers and employees. If, however, based on its experience
administering and enforcing the break time requirement and the comments
received in response to this Request for Information, the Department
determines that regulations are necessary, it will initiate rulemaking
at that time.
This Request for Information contains the Department's preliminary
interpretations of the law's requirements. The Department's
identification of key issues related to the law and the development of
this Request for Information have been informed by the Department's
meetings and discussions with various stakeholders, including employer
organizations and representatives, public health and women's
organizations, state agencies that have experience administering state
laws concerning workplace lactation, and individuals and businesses
that have contacted the Department with questions about the new law.
The Department looks forward to continuing to receive input and invites
the public to comment on the break time requirement generally and on
the

[[Page 80074]]

Department's preliminary interpretations in this Request for
Information. All comments will be made publicly available.

DATES: Comments must be received on or before February 22, 2011.

ADDRESSES: You may submit comments identified by RIN 1235-ZA00 by
either of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Please
follow the instructions for submitting comments.
Mail: Comments may be mailed to Montaniel Navarro, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC
20210.
Please submit only one copy of your comments by only one method.
All submissions must include the agency name and Regulatory Information
Number (RIN) identified above for this request for information. All
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Montaniel Navarro, FLSA Branch Chief,
Wage and Hour Division, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room S-3502, Washington, DC 20210, (202) 693-0051.

SUPPLEMENTARY INFORMATION:

I. Background

The Patient Protection and Affordable Care Act (the ``Affordable
Care Act'') amended section 7 of the Fair Labor Standards Act
(``FLSA''), 29 U.S.C. 207, to require employers to provide nursing
mothers reasonable break time and a place to express breast milk.
Public Law 111-148, 124 Stat. 119, section 4207. The new requirement
became effective when the President signed the Affordable Care Act on
March 23, 2010. The specific requirements of the new provision are
described below.

Break Time

Employers are required to provide ``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 need to express the
milk.'' 29 U.S.C. 207(r)(1)(A). The law states that ``[a]n employer
shall not be required to compensate an employee receiving reasonable
break time [for expressing breast milk] for any work time spent for
such purpose.'' 29 U.S.C. 207(r)(2).

Space

The law further requires employers to provide ``a place, other than
a bathroom, that is shielded from view and free from intrusion from
coworkers and the public, which may be used by an employee to express
breast milk.'' 29 U.S.C. 207(r)(1)(B).

Undue Hardship Exemption for Employers With Fewer Than 50 Employees

Under the law, ``[a]n employer that employs less than 50 employees
shall not be subject to the requirements of this subsection, if such
requirements would impose an undue hardship by causing the employer
significant difficulty or expense when considered in relation to the
size, financial resources, nature, or structure of the employer's
business.'' 29 U.S.C. 207(r)(3).

Relationship to State Laws

The Federal law does not preempt ``a State law that provides
greater protections to employees than the protections provided for
under [the Federal law].'' 29 U.S.C. 207(r)(4).

Coverage Under the FLSA Nursing Mothers Provision

As mentioned above, the Affordable Care Act's break time for
nursing mothers provision is now part of the FLSA. The FLSA is the
Federal law that sets minimum wage, overtime, recordkeeping, and youth
employment standards. The break time for nursing mothers provision was
added to section 7 of the FLSA, which sets forth premium payment
obligations for overtime. The FLSA and the break time for nursing
mothers provision apply only to certain employees. First, in order for
an employee to be covered by the FLSA, there must be ``enterprise
coverage'' or ``individual coverage.''

Enterprise Coverage

Employees who work for certain businesses or organizations
(``enterprises'') are covered by the FLSA. These enterprises, which
must have at least two employees, are:
(1) Those that have an annual dollar volume of sales or business
done of at least $500,000; or
(2) hospitals, businesses providing medical or nursing care for
residents, schools and preschools, and government agencies. 29 U.S.C.
203(s)(1).

Individual Coverage

Even when there is no enterprise coverage, employees are covered by
the FLSA if their work regularly involves them in commerce between
states (``interstate commerce''). The FLSA covers individual workers
who are ``engaged in commerce or in the production of goods for
commerce.'' 29 U.S.C. 206(a), 207(a). Examples of employees who are
involved in interstate commerce include those who: produce goods that
will be sent out of state (such as a worker assembling components in a
factory or a secretary typing letters in an office), regularly make
telephone calls to persons located in other states, handle records of
interstate transactions, travel to other states on their jobs, and do
janitorial work in buildings where goods are produced for shipment
outside the state. Also, domestic service workers such as housekeepers,
full-time babysitters, and cooks are typically covered by the FLSA. 29
U.S.C. 202(a).

Coverage for Nonexempt Employees

Even if an employee is covered under the FLSA, that employee would
only be entitled to break time to express breast milk if she is not
exempt from section 7 of the FLSA, which sets forth the Act's overtime
pay requirements. Unless specifically exempted, the FLSA requires
payment of overtime to covered employees for hours worked in excess of
40 hours per workweek at a rate not less than time and one-half of
their regular rates of pay. Because the Affordable Care Act amended
section 7 of the FLSA, the break time for nursing mothers provision
does not apply to employees who are exempt from the provisions of
section 7. While employers are not required under the FLSA to provide
breaks to nursing mothers who are exempt from the requirements of
section 7, they may be obligated to provide such breaks under state
laws. The Department encourages employers to provide break time for all
nursing mothers including those who may not be covered under the FLSA
or who are exempt from section 7.

II. Key Issues on Which Public Comment Is Requested

In this document, the Department shares its preliminary
interpretations of the law, and seeks public comment on any and all
issues concerning the reasonable break time for nursing mothers law.
The Department specifically seeks comment on certain issues and
preliminary interpretations, as noted below.

a. Unpaid Break Time

Employers are not required to compensate nursing mothers for breaks
taken for the purpose of expressing milk. 29 U.S.C. 207(r)(2). The FLSA
does not require an employer to provide its employees with rest periods
or breaks. However, if the employer permits short breaks, usually 20
minutes or less, the time must be counted as hours worked when
determining if the FLSA requirements for payment of

[[Page 80075]]

minimum wage and/or overtime have been satisfied. See 29 CFR 785.18.
Where an employer already provides paid breaks, an employee who uses
that break time to express milk must be paid in the same way that other
employees are compensated for break time.
Additional time used beyond the authorized paid break time could be
uncompensated. For example, if an employer provides a 20 minute paid
break and a nursing employee uses that time to express milk and takes a
total of 25 minutes for this purpose, the five minutes in excess of the
paid break time does not have to be compensated. The FLSA's general
requirement that the employee must be completely relieved from duty
applies; if a nursing employee is not completely relieved from duty
during a break to express breast milk, the time must be compensated as
work time. See WHD Fact Sheet 22, Hours Worked Under the FLSA
at http://www.dol.gov/whd/regs/compliance/whdfs22.htm.
Although the FLSA does not require employers to allow employees to
extend their workday (i.e., begin work earlier or end work later) to
make up for unpaid break time used for expressing milk, the Department
encourages employers to provide flexible scheduling for those employees
who choose to make up for any unpaid break time.

b. Reasonable Break Time

Employers must provide ``a reasonable break time'' for nursing
mothers to express breast milk ``each time such employee has need to
express the milk.'' 29 U.S.C. 207(r)(1)(A). In implementing the
requirements of this provision, employers should consider both the
frequency and number of breaks a nursing mother might need and the
length of time she will need to express breast milk. The information
provided below is intended to help employers in this assessment so that
they can develop policies that meet the requirements of the law and
make sense for their work environment.
The Department has consulted with public health officials from the
U.S. Department of Health and Human Services, including the Centers for
Disease Control and Prevention (CDC) and the Health Resources and
Services Administration, in order to better understand a nursing
mother's physiological needs and to inform our initial determinations
regarding the frequency and timing of breaks to express breast milk.
The information that follows stems from the guidance provided by the
lactation experts at these public health agencies.\1\ The frequency of
breaks needed to express breast milk varies depending on factors such
as the age of the baby, the number of breast feedings in the baby's
normal daily schedule, whether the baby is eating solid food, and other
factors. In the early months of life a baby may need as many as 8 to 12
feedings per day. This means that a nursing baby needs food every two
to three hours. A nursing mother produces milk on a constant basis. If
the baby does not take the milk directly from the mother, it must be
removed by a pump about as frequently as the baby usually nurses. If a
mother is unable to express breast milk while she is away from her
baby, she may experience a drop in her milk supply which could result
in her being unable to continue nursing her child. The inability to
express milk may also lead to an infection. Depending on the nursing
mother's work schedule, it may be that the frequency of breaks needed
tracks regular breaks and lunch periods, but this will not always be
the case. As the child grows and begins to consume solid foods,
typically around six months of age, the frequency of nursing often
decreases, and the need for a nursing mother to take breaks to express
breast milk may also gradually diminish.
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\1\ See ``The Business Case for Breastfeeding: Steps for
Creating a Breastfeeding Friendly Worksite'', U.S. Department of
Health and Human Services, Health Resources and Services
Administration (2008), available at http://www.womenshealth.gov/breastfeeding/government-programs/business-case-for-breastfeeding/index.cfm.
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The Department expects that nursing mothers typically will need
breaks to express milk two to three times during an eight hour shift.
Longer shifts will require additional breaks to express milk.
The length of time necessary to express milk also varies from woman
to woman. The act of expressing breast milk alone typically takes about
15 to 20 minutes, but there are many other factors that will determine
a reasonable break time. Employers should consider these factors when
determining how they will provide both reasonable break time and space
for nursing mothers. For example, factors such as the location of the
space and the amenities nearby (e.g., proximity to employee's work
area, availability of sink for washing, location of refrigerator or
personal storage for the milk, etc.) can affect the length of break an
employee will need to express milk. Some of the factors employers
should consider in determining whether the time needed for a nursing
employee to express milk is ``reasonable'' include:
(i) The time it takes to walk to and from the lactation space and
the wait, if any, to use the space;
(ii) Whether the employee has to retrieve her pump and other
supplies from another location;
(iii) Whether the employee will need to unpack and set up her own
pump or if a pump is provided for her;
(iv) The efficiency of the pump used to express milk (employees
using different pumps may require more or less time);
(v) Whether there is a sink and running water nearby for the
employee to use to wash her hands before pumping and to clean the pump
attachments when she is done expressing milk, or what additional steps
she will need to take to maintain the cleanliness of the pump
attachments;
(vi) The time it takes for the employee to store her milk either in
a refrigerator or personal cooler.
Nursing employees are encouraged to discuss with their employers
what they expect they will need in terms of frequency and timing of
breaks to express milk. Employers are encouraged to discuss with
nursing employees the location and availability of space for expressing
milk as that will affect the time required for the breaks. These
discussions will help employers and employees to develop shared
expectations and an understanding of what will constitute ``a
reasonable break time'' and how to incorporate the breaks into the work
period.
In assessing the reasonableness of break time provided to a nursing
employee, the Department will consider all the steps reasonably
necessary to express breast milk, not merely the time required to
express the milk itself.

c. Space for Expressing Breast Milk

The break time for nursing mothers provision requires that covered
employers provide ``a place, other than a bathroom, that is shielded
from view and free from intrusion from coworkers and the public, which
may be used by an employee to express breast milk.'' 29 U.S.C.
207(r)(1)(B). The Department's initial interpretation of the
requirement that the space be ``shielded from view and free from
intrusion'' is that it requires employers where practicable to make a
room (either private or with partitions for use by multiple nursing
employees) available for use by employees taking breaks to express
milk. Where it is not practicable for an employer to provide a room,
the requirement can be met by creating a space with partitions or
curtains. Any windows in the designated room or

[[Page 80076]]

space should be covered to ensure the space is ``shielded from view.''
With any space provided for expressing milk, the employer must ensure
the employee's privacy through means such as signs that designate when
the space is in use, or a lock on the door.
The employer is not obligated to maintain a permanent, dedicated
space for nursing mothers. A space temporarily created or converted
into a space for expressing milk or made available when needed by a
nursing mother is sufficient provided that the space is shielded from
view, and free from intrusion from coworkers and the public.
While a bathroom, even if it offers privacy, does not meet the
requirements of the statute, an anteroom or lounge area connected to
the bathroom may be sufficient to meet the requirements of the law. For
example, if there is a wall with a door separating the lounge area from
the bathroom, and if there is a space for nursing mothers within the
lounge that is ``shielded from view'' and ``free from intrusion,'' this
would likely meet the requirements of the law. The Department would
appreciate comments on whether and under what circumstances rooms that
adjoin bathrooms could be compliant with the law.
Locker rooms that function as changing rooms (i.e., for changing in
and out of uniforms) may also be adequate as long as there is a
separate space designated within the room for expressing milk that is
shielded from view and free from intrusion. The Department does not
believe, however, that a locker room where there is not sufficient
differentiation between the toilet area and the space reserved for
expressing breast milk would meet the requirements of the law because
it presents similar health and sanitation concerns as a bathroom. There
is concern that locker rooms may not be appropriate because such wet
environments are at risk of being contaminated with pathogenic bacteria
and have been linked to outbreaks of methicillin-resistant
Staphylococcus aureus (MRSA). The Department would appreciate comments
on whether and under what circumstances locker rooms could be compliant
with the law.
Because the statute requires employers to provide break time ``each
time such employee has need to express the milk,'' employers should
consider the number of nursing mothers employed and their work
schedules to determine the location and number of spaces to designate
or create. As described above, the amount of time that is reasonable
for a nursing employee to express milk is dependent in part on her
ability to access a suitable space. In order to accommodate significant
numbers of nursing mothers, some large employers may choose to include
nursing mothers' rooms in their floor plans and provide a room on
multiple floors of their facility or in an on-site health facility.
Other employers may provide a large room with privacy screens so that
the room may be used simultaneously by several nursing employees. Where
the designated space is so far from the employee's work area as to make
it impractical for the employee to take breaks to express milk, or
where the number of nursing employees needing to use the space either
prevents an employee from taking breaks to express milk or necessitates
prolonged waiting time, the Department will not consider the employer
to be in compliance with the requirement to provide reasonable break
time.
In order to be a functional space ``that may be used by an employee
to express breast milk,'' at a minimum, a space must contain a place
for the nursing mother to sit, and a flat surface, other than the
floor, on which to place the pump. Ideally, the space will have access
to electricity, so that a nursing mother can plug in an electric pump
rather than use a pump with battery power. There are a range of
additional features that some employers have included when providing
spaces for their employees to use to express breast milk, such as sinks
within or nearby the room for washing hands and cleaning pump
attachments, and refrigerators within or nearby the room for storing
expressed milk. While such additional features are not required, the
Department notes that their provision may decrease the amount of break
time needed by nursing employees to express milk.
The Department interprets an employee's right to express milk for a
nursing child to include the ability to safely store the milk for her
child.\2\ While employers are not required to provide refrigeration
options for nursing mothers for the purpose of storing expressed milk,
they must allow a nursing mother to bring a pump and insulated food
container to work for expressing and storing the milk and ensure there
is a place where she can store the pump and insulated food container
while she is at work. This is similar to providing employees with a
place to store lunch or meals that they bring to work in insulated food
containers. In many workplaces the nursing mother will be able to keep
the pump and insulated container near her work space, but in some
settings it may be necessary to have a separate place for her to stow
the pump and insulated food container (e.g., a locker, closet, cabinet,
or other space where the pump and container will not be disturbed or
contaminated).
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\2\ The CDC Web site contains recommended guidelines for the
safe preparation and storage of expressed breast milk. See http://www.cdc.gov/breastfeeding/recommendations/handling_breastmilk.htm.
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The Department is aware that there are many work settings that are
not in office buildings, and that this can pose unique challenges to
providing an adequate space for nursing mothers to express milk. For
example, there are nursing employees who work in retail settings, quick
service food stores and restaurants, construction or outdoor work
sites, factories, or in other non-office building settings. Some of
these workplaces may have limited space available to convert into a
designated space to express breast milk. In order to meet the
obligations of the law, employers need not create a permanent,
dedicated space for expressing milk.
The Department is aware that many such employers have found ways to
provide break time and space for nursing employees even though there
was no readily available ``unused'' space. For example, in restaurants
and small retail settings, employers have made spaces normally
designated for other purposes available when needed by the nursing
mother. Malls or retail shopping centers have designated shared space
to be used by employees of the various tenant businesses. The
Department would appreciate comments that address the conditions under
which spaces such as manager's offices, storage spaces, utility
closets, and other such spaces normally used for other purposes could
be considered adequate spaces for use by nursing mothers under the
statute. In addition, the Department solicits comments on the kinds of
shared space arrangements that would be acceptable under the law.
Similarly, the Department would appreciate comments that address
how employers can provide adequate break time and space for nursing
employees who are not in a fixed place during a work shift (e.g., bus
drivers, mail or parcel delivery workers, law enforcement officers,
emergency medical technicians, etc.). In general, the Department would
appreciate comments that describe creative solutions to providing break
time and space for nursing mothers so that we can share these examples
more broadly.
Employers have also asked the Department what their obligation is
to provide a space when their nursing

[[Page 80077]]

employee is located at a client's worksite, rather than the employer's
worksite. It is the Department's view that the statutory language makes
it the obligation of the employer to provide the space, regardless of
where the employee is located. In situations where the employee is off-
site, the Department recommends that the employer arrange with the
client to allow the employee to use a space at the client's site for
the purpose of expressing milk. It may be that the client's worksite
already has a designated space for expressing milk for its own
employees that can be used by the contract employee. Where a joint
employment relationship exists between the employer and client in
relation to the nursing employee, both parties would be viewed as
having the obligation to provide reasonable break time and an
appropriate space in which to express milk. The Department would
appreciate comments and recommendations as to how employers can meet
their obligations under the law to provide break time and space for
nursing mother employees who are working at other sites.

d. Notice

In order to facilitate an employer's ability to provide appropriate
space for expressing milk, the Department encourages nursing employees
to give employers advance notice of their intent to take breaks at work
to express milk. The Department believes that a simple conversation
between an employee and a supervisor, manager, or human resources
representative about the employee's intent to take breaks for the
purpose of expressing breast milk would facilitate an employer's
ability to make arrangements to comply with the law before the nursing
mother returns to work. The Department solicits comments about how best
to address notice issues consistent with the language and purpose of
the law, bearing in mind that the employer must provide the break time
and lactation space ``each time such employee has need to express the
milk.'' 29 U.S.C. 207(r)(1)(A).
The Department notes that an employer may ask an expectant mother
if she intends to take breaks to express milk while at work. Doing so
informs employees of their rights under the law and allows the employer
the opportunity to make any necessary adjustments to comply with the
law.

e. Undue Hardship Exemption

The break time for nursing mothers statutory provision provides an
undue hardship exemption that is only available for employers with
fewer than 50 employees that meet certain conditions, as further
described below. Employers with 50 or more employees must comply with
the law without exception. 29 U.S.C. 207(r)(3). Unlike the Family
Medical Leave Act, in which Congress specifically excluded from
coverage worksites where an employer employs less than 50 employees or
where the total number of employees employed by that employer within 75
miles of a particular worksite is less than 50 employees, Congress did
not provide such specifications for determining the application of the
break time for nursing mothers provision to small employers or
worksites with few employees. The statutory language of section 7(r)(3)
sets forth the number of employees without further specifications such
as the number of employees per worksite, or in a geographic area, for
example. Therefore, the Department has concluded that covered employers
must count all employees who work for the employer, including all work
sites, when determining whether this exemption might apply.
Because the nursing mothers break time requirements were added to
the FLSA, the Department will apply the FLSA definition of ``employee''
in section 3(e)(1) when counting employees. Thus, ``any individual
employed by an employer'' must be counted, including full-time
employees, part-time employees, and any other individuals who meet the
FLSA definition of an employee.
In addition, the Department intends to use the FLSA workweek
standard for purposes of counting whether the employer has fewer than
50 employees. See 29 CFR 778.105. The Department recognizes that some
employers' workforces fluctuate from week to week, and that some
businesses experience variation in workforce size over the course of
time, for myriad reasons. However, the Department believes it is
necessary to fix the workweek at which the number of employees are
counted for purposes of the undue hardship exemption because a nursing
mother necessarily relies on the availability of the breaks, and
fluctuation in the ability to express breast milk at work may cause the
woman to lose the ability to produce sufficient milk for her child,
frustrating the purpose of the law. The Department solicits comments as
to the appropriate point at which to count the number of employees for
purposes of determining whether the employer may assert an undue
hardship defense. The Department is considering whether the number of
employees should be counted in the workweek in which the employee
notifies the employer that she intends to take breaks to express milk,
in the first workweek the employee intends to utilize the breaks and
the space to express milk at work, or at some other point. Further, the
Department believes that an employer that has previously claimed the
undue hardship exemption will no longer be eligible for the exemption
if the number of employees employed by the employer rises to 50 or more
at the point determined above. The Department solicits comments on this
interpretation as well.
The employer bears the burden of proof that compliance with the
nursing mothers break time provision would be an undue hardship. In
addition to demonstrating that the employer employs fewer than 50
employees, an employer that wishes to avail itself of the exemption
must show that compliance would cause the employer ``significant
difficulty or expense when considered in relation to the size,
financial resources, nature, or structure of the employer's business.''
29 U.S.C. 207(r)(3). Because these factors and the number of employees
employed by a particular employer will vary depending on the
circumstances at the time the request for break time is made, the
Department will not grant prospective undue hardship exemptions to
employers. The undue hardship exemption will operate as an affirmative
defense raised by an employer that seeks to demonstrate to the
Department why it is unable to accommodate a particular nursing
employee under the law. For example, if the Department were
investigating a complaint made by a nursing mother who claims her
employer is not complying with the law, the employer would have an
opportunity at that time to demonstrate to the Department why it
qualifies in that instance for an undue hardship exemption based on the
statutory factors.
Because the law only requires space and time for unpaid breaks for
one year after a child's birth, and the employer must be able to
demonstrate ``significant'' difficulty or expense, the Department
believes that this is a stringent standard that will result in
employers being able to avail themselves of the exemption only in
limited circumstances. Employers with fewer than 50 employees may not
presume that having a smaller workforce by itself sufficiently
demonstrates that compliance would pose a significant difficulty or
expense; the difficulty or expense must be shown in light of the
factors listed in the statute. The Department expects and encourages
such small employers to

[[Page 80078]]

approach compliance creatively and constructively, and will evaluate
each undue hardship claim by applying the statutory factors to the
particular factual circumstances of a case. The Department solicits
comments on whether this undue hardship standard, which is very similar
to the undue hardship standard in the Americans With Disabilities Act,
42 U.S.C. 12111(10) (``significant difficulty or expense'' when
considered in light of factors such as financial resources, size, type
of operation and workforce structure), should be interpreted in the
same way the undue hardship defense has been interpreted under that
law.

f. Relationship to the Family Medical Leave Act

The Department has received several inquiries concerning the
relationship of the nursing mothers break time provision to the Family
Medical Leave Act (``FMLA''). The FMLA entitles eligible employees of
covered employers to take unpaid, job-protected leave for specified
family and medical reasons. See 29 U.S.C. 2601 et seq. Among the
qualifying reasons for taking FMLA leave are to care for a newborn
child within one year of birth and for the employee's own serious
health condition that makes the employee unable to perform the
essential functions of his or her job. FMLA protections do not extend
to leave taken for reasons not covered by the Act. See WHD Fact Sheet
28 The Family and Medical Leave Act of 1993 at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.
The Department does not believe that breaks to express breast milk
can properly be considered to be FMLA leave or counted against an
employee's FMLA leave entitlement. While employees are entitled to take
FMLA leave to bond with a newborn child, the Department does not
consider expressing milk at work to constitute bonding with or caring
for a newborn child. See 29 CFR 825.120. Also, while an eligible
employee may take FMLA leave due to her own serious health condition,
the Department does not believe that expressing milk will typically be
associated with a serious health condition under the FMLA. See 29 CFR
825.113-115.

g. Enforcement

The Department's Wage and Hour Division (WHD) is charged with
administering and enforcing the FLSA, which includes the new break time
for nursing mothers provision. The enforcement of the FLSA is carried
out by WHD investigators. As the WHD's authorized representatives, they
conduct investigations and gather data on wages, hours, and other
employment conditions or practices, in order to determine compliance
with the law. 29 U.S.C. 211. Where violations are found, they also may
recommend changes in employment practices to bring an employer into
compliance.
If an employee would like to file a complaint because she believes
her employer has violated the break time for nursing mothers
requirement under the FLSA, she should call the toll-free WHD number 1-
866-487-9243 and she will be directed to the nearest WHD office for
assistance. The WHD Web site at http://www.dol.gov/wecanhelp/howtofilecomplaint.htm provides basic information about how to file a
complaint and how the WHD will investigate complaints.
To the extent possible, WHD intends to give priority consideration
to complaints received by the agency alleging that an employer is
failing to provide break time and a space to express milk as required
by law to allow expeditious resolution of the matter in order to
preserve the employee's ability to continue to breastfeed and express
milk for her child.
Section 7(r) of the FLSA does not specify any penalties if an
employer is found to have violated the break time for nursing mothers
requirement. In most instances, an employee may only bring an action
for unpaid minimum wages or unpaid overtime compensation and an
additional equal amount in liquidated damages. 29 U.S.C. 216(b).
Because employers are not required to compensate employees for break
time to express breast milk, in most circumstances there will not be
any unpaid minimum wage or overtime compensation associated with the
failure to provide such breaks.
If an employer refuses to comply with the requirements of section
7(r), however, the Department may seek injunctive relief in federal
district court, and may obtain reinstatement and lost wages for the
employee. 29 U.S.C. 217. For example, if an employer terminates a
nursing mother employee because she takes breaks to express milk that
she is entitled to under the FLSA, or because she has informed her
employer that she intends to take breaks to express breast milk, this
would be considered a violation of 29 U.S.C. 15(a)(2) (i.e., an
unlawful violation of section 7(r)). In such a case, the Department
could pursue injunctive relief in federal district court and seek
reinstatement and lost wages for the employee. Additionally, if an
employee is ``discharged or in any other manner discriminated against''
because she has filed a complaint or caused to be instituted any
proceeding regarding break time for expressing breast milk, the
employee may file a retaliation complaint with the Department or she
may file a private cause of action seeking reinstatement, lost wages,
and other appropriate remedies. 29 U.S.C. 215(a)(3), 216(b).
If an employer treats employees who take breaks to express breast
milk differently than employees who take breaks for other personal
reasons, the nursing employee may have a claim for disparate treatment
under Title VII of the Civil Rights Act of 1964.\3\
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\3\ The Equal Employment Opportunity Commission (EEOC) should be
consulted for further information about Title VII. See http://www.eeoc.gov.
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h. Compliance Assistance

The Department is determining how best to provide assistance to
employees as well as to employers seeking to comply with the new break
time for nursing mothers requirement. The Department has established a
website that provides a compilation of resources that employers,
employees, lactation consultants, and other interested stakeholders
might find useful as they seek to develop workplace lactation programs.
See http://www.dol.gov/whd/nursingmothers. We are interested generally
in hearing from the public about the kinds of information and resources
that would be most helpful to employers and employees as they seek to
comply with the requirements of the law and to exercise the break time
right provided under the law.

i. Additional Resources

Employers and employees are encouraged to review information issued
by the Department of Health and Human Services (HHS) concerning
workplace lactation programs. The Health Resources and Services
Administration within HHS has published a resource kit, The Business
Case for Breastfeeding, which includes materials for management, human
resource managers, and others involved in implementing on-site programs
for lactation support and may be accessed at http://www.womenshealth.gov/breastfeeding/government-programs/business-case-for-breastfeeding/index.cfm. The Centers for Disease Control and
Prevention within HHS has a Healthier Worksite Initiative that offers a
toolkit to help employers establish a comprehensive lactation support
program for nursing mothers at the worksite. The toolkit is available
at http://www.cdc.gov/nccdphp/dnpao/

[[Page 80079]]

hwi/toolkits/lactation/index.htm. Several non-profit organizations and
state breastfeeding coalitions also provide resources to help employers
develop lactation policies and programs. In addition, employers may
wish to review the Equal Employment Opportunity Commission's
``Enforcement Guidance: Unlawful Disparate Treatment of Workers with
Caregiving Responsibilities'' which is available at http://www.eeoc.gov/policy/docs/caregiving.html.

III. Electronic Access

An electronic version of this Request for Information is available
on the Internet at http://www.regulations.gov and http://www.dol.gov/whd/nursingmothers.

Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2010-31959 Filed 12-20-10; 8:45 am]
BILLING CODE 4510-27-P