A nursing mother in your workplace has certain employment rights that you as an employer must understand. Until the time that the child is one year old, Texas employers must provide the time and space for the mother to breastfeed the baby (if children are allowed at the workplace) or to express milk to be stored for later.
The federal compensation law, the Fair Labor Standards Act (“FLSA”), was amended in 2010 to require employers to provide nursing mothers with “reasonable” break time to pump breast milk. Employers must realize that there is no one definition of what is “reasonable” that applies to every new mother.
The Department of Labor says in its Fact Sheet #73 regarding Break Time for Nursing Mothers, “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.” Speaking from experience, nursing may take 10 minutes, 25 minutes, 40 minutes or even longer and isn’t standardized from mom to mom, day to day, or break to break.
If you provide coffee breaks or meal breaks during the day to other employees and pay them during that break (which the FLSA requires you to do if the break is less than 20 minutes), then you should allow your nursing mothers to use those breaks if convenient and be paid during those breaks just like any other employee.
Otherwise, nursing breaks do not have to be compensated, so you can require a nonexempt (hourly) employee to clock out during the break so that the nursing break isn’t paid. If that means that the employee has to stay longer each day to actually perform work for 40 hours per week, you as an employee can require that extra time. Or you can choose to pay the employee for only the hours worked, which may be less than 40 when lots of nursing breaks are taken.
The easiest way to address compensation is to have a written policy that states that all nursing breaks of 20 minutes or less are paid, but longer breaks are unpaid.
You also have a responsibility as an employer to provide a place for the nursing mother to breastfeed or express milk. That place cannot be a bathroom. The area must be private with a lock on the door or another way to assure that the public and/or coworkers won’t barge in while the employee is nursing or pumping. If you have more than one nursing mother employed at a time, it is common practice to have a sign up or reservation-type system for the room you designate for expressing milk.
The secluded place the employer provides must be functional for expressing milk, meaning it should at least be furnished with a comfortable chair. Many employers provide a small dorm-sized refrigerator and a Sharpee in the nursing area so that the expressed milk can be labelled and dated and kept cool until the new mother can take it home.
Texas allows employers who adopt a new mother-friendly written policy to advertise that it is a “mother-friendly” business. If that “carrot” approach doesn’t convince you, then the “stick” is that failure to provide adequate breaks and a secure place for nursing mothers means that not only will your business be violating the FLSA, but also the employee can bring a sex discrimination or sexual harassment action if you have at least 15 employees.
A federal court has also ruled that breastfeeding is a medical condition related to pregnancy and maternity, so you can also be sued under the Pregnancy Discrimination Act. You must additionally prevent an employee from being retaliated against for exercising her rights as a nursing mother, i.e., you must assure that her supervisor doesn’t give her a poor evaluation or demote her because her nursing rights create some disruption in the office.
Small employers (less than 50) have one defense to these kinds of claims. Continue reading Workplaces Must Accommodate A Nursing Mother