New Guidance from the DOL for Lactation Accommodation, and Comparable California Law

August 20, 2010

Tucked into the "health care reform bill" passed earlier this year, was an amendment to the Fair Labor Standards Act ("FLSA"), requiring employers to provide nursing mothers with adequate time to express breast milk. In July, the U.S. Department of Labor ("DOL") issued Fact Sheet #73 to provide guidance to employers. California employers have had to provide such accommodation since similar state laws were passed in 2002. The amendment to the FLSA imposes new obligations on employers in states such as Nevada which have not had similar requirements.

Here is a synopsis of the general requirements. Employers are advised to seek assistance of counsel in situations which are not easily accommodated.

Coverage of the laws:
California's law applies to all employers, regardless of size. Under FLSA, employers with fewer than 50 employees company-wide are exempt if compliance "would impose an undue hardship," as determined by the difficulty or expense of compliance compared to the employer's resources. California provides an exemption to compliance, "if to do so would seriously disrupt the operations of the employer." The burden of proving an inability to comply will rest with the employer.

California's law also applies to all employees, while the FLSA applies only to non-exempt (hourly) workers.

Location of breaks:
Under both laws, the employee must be provided with a location which is private. The FLSA may demand more of employers than does California. Under the FLSA, a bathroom is not a permissible location to designate for expressing, while in California the employer may not relegate a woman to a "toilet stall." Further, FLSA requires that the space be "functional as a space for expressing milk," which the Department of Health and Human Services has suggested calls for a chair and small table or shelf for a breast pump. The place where the employee works would be adequate if it can be made free from intrusion. A space temporarily created for the purpose would be sufficient so long as it is available when needed by the nursing mother.

Privacy:
In June 2008, the California Labor Commissioner imposed penalties in the amount of $4,000 against an employer who failed to provide a space with adequate privacy to an employee. The Labor Commissioner's press release announcing the enforcement states, "Initially the room that was provided was computer server room with security cameras. This offered an inadequate level of privacy needed to perform the milk expressing process."

Time and Duration of Breaks:
California permits an employer to require break time for expressing to run concurrently with authorized rest break time, which in California amounts to a net of 10 minutes for each four hours of work (or major fraction of four hours). Employee time spent on lactation breaks beyond that must be provided if needed by the employee, but they need not be compensated. However, any time spent by the employee getting to the designated break area would not be considered part of the net 10 minutes.

The FLSA provides less clarity. Since the FLSA does not require that an employer provide paid rest breaks, time spent on a lactation break may not need to be paid if the employer does not otherwise have a paid break policy. The DOL Fact Sheet states that the employer must 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."

How Long Accommodation is Required:
California does not state the length of time that a woman must be afforded this accommodation, stating only that the accommodation must be made for an employee "desiring to express breast milk for the employee's infant child." The FLSA, on the other hand, applies for one year after the child's birth."

Enforcement:
Penalties may be imposed under Labor Code 1033 in the amount of $100 for each violation, with no maximum specified in the statute.

The FLSA does not yet provide for penalties for failure to accommodate lactating mothers. This suggests the remedy for an employee in a state without an equivalent law, such as Nevada, would be an action for enforcement to a state or federal agency.

Essential Steps for an Employer:
Working through the requirements and logistics for each returning employee would be the employer's best practice under both California law and the FLSA. Employers should ensure that any woman returning from a pregnancy leave has been informed of her right to lactation accommodation, that consideration of logistics has been given for each returning employee, and that the employee's manager thoroughly understands and supports the company's obligations for the accommodation.