Under an amendment to the Fair Labor Standards Act (FLSA) included in the landmark health care law signed by President Obama on March 23, 2010, employers must now provide "reasonable" unpaid breaks and a private space to nursing mothers to express milk for their infants.  

Breaks at work required for nursing mothers

Under an amendment to the Fair Labor Standards Act (FLSA) included in the landmark health care law signed by President Obama on March 23, 2010, employers must now provide "reasonable" unpaid breaks and a private space to nursing mothers to express milk for their infants. 

Specifically, employers are required to provide nursing mothers with reasonable breaks any time they need to express milk, for up to one year after a child's birth. The breaks need not be paid. In addition, employers are required to provide nursing mothers with a private place for expressing milk. This space must be shielded from view and free from intrusion and may not be a bathroom. 

Employers with fewer than 50 employees need not comply with the mandate if its 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. 

Twenty-four states already have laws about breaks at work for nursing mothers. Under the FLSA, employers must comply with the standard that is more favorable to the employee. Some states require that breaks for expressing milk be paid, for example, while others mandate that breaks be provided to nursing mothers until their babies are two or three years old. The National Conference of State Legislatures has compiled a summary of state laws related to nursing mothers as shown here

The new FLSA mandate went into effect with the March 23, 2010, signing of the Patient Protection and Affordable Care Act (H.R. 3590), but the Department of Labor will not begin enforcement efforts until it issues guidance defining terms and enforcement procedures. 

Employers are advised to prepare for the start of enforcement of the new rules by establishing or reviewing policies to provide breaks for nursing mothers. On the following page is sample policy language that you might use or adapt. Note that final policies will need to be in compliance with state as well as federal law. 

Sample policy 
Disclaimer: This is a generic sample policy and does not reflect the employment laws in all of the 50 U.S. states. Review the applicable state laws and/or seek guidance from legal counsel before establishing any company policy or procedure. 

In compliance with federal law which requires the provision of unpaid, reasonable break time for an employee to express breast milk, the Company subscribes to the following policy: 

  • An employee will be provided an unpaid reasonable break time to breastfeed or express breast milk for her nursing child for the first year of the child's life. These break periods will be given each time the employee has need to breastfeed or express breast milk.
  • An employee lactation room is provided as a private and sanitary place for breastfeeding employees to breastfeed or express their milk during work hours. This room provides an electrical outlet, comfortable chair, and nearby access to running water. Employees may use their private office area for breastfeeding or milk expression, if they prefer.
  • A refrigerator will be made available for safe storage of expressed breast milk. Employees may use their own cooler packs to store expressed breast milk, or may store milk in a designated refrigerator/freezer. Employees should provide their own containers, clearly labeled with name and date. Those using the refrigerator are responsible for keeping it clean.
  • Management and staff are expected to provide an atmosphere of support for breastfeeding employees.