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Nursing Mothers

  1. The federal health care reform bill signed on March 23, 2010 contained an amendment to the FLSA (new section 207(r)(1)) requiring employers to give breaks for nursing.

  2. Under that new FLSA provision, a non-exempt employee is entitled to a "reasonable break time" to express breast milk for her nursing child, each time the employee needs to express the milk, for up to one year following the child's birth.

  3. "Reasonable break time": the statute indicates that the break must be allowed "each time such employee has need to express the milk." DOL fact sheet # 73 (see link in item 7 below) states that "employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk, as well as the duration of each break, will likely vary." The burden of challenging how much time a nursing mother needs for such a purpose would be on the employer. For most people, the frequency of such breaks would decline in the natural course of events, so they should not be too difficult to accommodate.

  4. A nursing mom has the right to a private, non-restroom place where the employee will not be disturbed while expressing the milk.

  5. Unlike ordinary coffee or rest breaks, nursing/breast-pumping breaks do not need to be compensated, so the company can have a policy requiring employees to clock out and then back in for such breaks. Employees who use their regular paid rest breaks for nursing/expression of breast milk would be paid for those breaks just like any other employees. In terms of total work time for the shift, the employee may need to either arrive earlier or stay longer to work a certain number of hours, or else experience a slight reduction in pay due to having unpaid nursing/breast-pumping breaks during the day and not being able to arrive earlier or stay later to make up the time.

  6. Employers with fewer than 50 employees are excused from this requirement if compliance would cause them undue hardship (the burden of proving that would be on the small employer).

  7. See the new DOL fact sheet at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.

  8. Under a law enacted in 2015, for public-sector employees in Texas, no time limit applies to the right to express breast milk at the employee's workplace (see Chapter 619 of the Government Code at http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.619.htm). Public employers must adopt a written policy that states that the public employer supports the practice of expressing breast milk, and make reasonable accommodations for the needs of employees who express breast milk. Such an employer must allow a reasonable amount of break time for an employee to express break milk, as often as the employee needs to do that, and must provide a secluded place, other than a multi-user bathroom, that is private and safeguarded from intrusions by other employees and the public, where the employee can express her milk. Finally, the public employer must ensure that no adverse action is taken against employees who avail themselves of their rights under the law.

  9. The federal law notes that state laws are not preempted - thus, in Texas the following laws are important to be aware of:

    1. Texas Health & Safety Code, Sec. 165.002. "A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be."

    2. Texas Health & Safety Code, Sec. 165.003. "(a) A business may use the designation 'mother-friendly' in its promotional materials if the business develops a policy supporting the practice of worksite breast-feeding ... ."

    3. Texas Government Code, http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.619.htm. See the discussion immediately above for the specific rights afforded to public employees in Texas.

 

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