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Breastfeeding or Working – A Mother Shouldn’t Have to Choose

Carrie Barron

In celebration of Mother’s Day 2013, 3rd Army headquarters, located at Shaw Air Force Base, S.C. announced that it was opening a lactation room for mothers who were breastfeeding babies.  The Dallas County District Attorney’s Office celebrated Mother’s Day 2013 similarly—by designating a room in the DA’s office for use by lactating mothers.   More than three years earlier, on March 23, 2010, President Obama signed into law the Patient Care and Affordable Care Act, known as the Affordable Care Act, or simply “ACA.”  One of the ACA’s lesser known provisions requires employers to provide break time for nursing mothers. Under this provision, employers must provide a reasonable amount of break time for nursing mothers to express milk as frequently as needed, for up to a year.  Employers must also 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.”

The break time for nursing mothers provision contained within ACA specifically amends Section 7 of the Fair Labor Standards Act (“FLSA”).   Its protections are therefore limited to those employees covered by the FLSA, primarily non-exempt employees.  Furthermore, employers with fewer than 50 employees may avoid compliance if it can demonstrate that providing the benefits would impose an undue hardship.  In addition, employers are not required to compensate employees who take breaks to express milk, unless employers already provide compensated breaks, in which case an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.   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 DOL encourages employers to provide flexible scheduling for those employees who choose to make up for any unpaid break time.

How can a nursing mother require her employer to comply with the law?   Nursing mothers can file a complaint with the Wage and Hour Division of the Department of Labor.  The DOL has assured the public that it will give priority to those claims since time is of the essence in maintaining a milk supply.   However, there are no monetary penalties built into the statute. And since employers are not required to compensate employees for break time spent expressing milk, DOL cannot seek reimbursement of back pay when an employee has been deprived of that right.   Its authority is limited to seeking injunctive relief in federal court.  There is not private right of action.

The ACA does not preempt state laws which may offer additional protections to nursing mothers.  But state laws vary dramatically in their treatment of breastfeeding women.   In Ohio, for example, nursing mothers are entitled to breastfeed their babies in any location where the mother is otherwise permitted and cannot be prosecuted for indecent exposure.  In New York,  employers are required to allow breastfeeding mothers reasonable, unpaid breaks for expressing milk, provide a private location for that to occur, and are prohibited from discriminating against breastfeeding women.

The American Academy of Pediatrics recommends that babies be breast fed exclusively for the first 6 months of life and in combination with other foods until at least 12 months of age.  Mothers should be able to choose both work and breastfeeding.

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