The idea of going back to work after giving birth is often a tough decision for nursing mothers. The logistics of nursing and pumping can be daunting, not to mention the fear of leaving children with another care giver. Luckily, Section 7(r) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207), which was amended by the Patient Protection and Affordable Care Act (P.L. 111-148), provides some help for nursing mothers when it comes to figuring out when and how to pump or nurse at work.
Mandatory break times
For those companies covered by the FLSA, they must provide break times for nursing employees to “express breast milk.” Though, unless break times are already compensated, these breaks do not have to be paid. If there is already compensated breaks, the mother can use those breaks for milk expression, in addition to additional, unpaid, breaks. The number required is dictated by the needs of the nursing mom.
In addition, for those companies covered by the FLSA, they must provide space for breast feeding or pumping. This space must be functional for that purpose, shielded from intrusion by co-workers, customers and the public. It also cannot be a bathroom, and the space must be available as needed by the mother. Of course, this does not mean that a company must maintain a permanent pumping room. Indeed, if there are no nursing mother employees, no separate space is needed. If there are though, a space must be available, as needed.
Can an employer opt-out?
If a San Diego, California, employer is not covered by the FLSA, like if they do not have at least 50 employees, these federal requirements to not apply. Though, most states do have their own nursing requirements. Another way that an employer can opt-out is if they can demonstrate that providing this space or time would impose an undue hardship to the company. Whether an undue hardship is present is determined by looking at the expense and difficulty of compliance for that employer, compared to their financial resources, structure, size and the nature of their business. This is an extremely high bar though, as it is extremely hard to justify not being able to find a shielded, function space. But, for violators, this qualifies as a meal and rest violation.