Wage and Hour Division December 21, 2010 – Federal Register Recent Federal Regulation Documents

This notice is a request for information from the public regarding the recent amendment to the Fair Labor Standards Act (FLSA) that requires employers to provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child's birth. The Department of Labor (``the Department'') administers and enforces the FLSA through its Wage and Hour Division. Contained in this notice are the Department's preliminary interpretations of the new break time amendment to the FLSA. The Department seeks information and comments for its review on various issues addressed in this notice, as it considers how best to help employers and employees understand the requirements of the break time for nursing mothers law. The break time requirement that is now part of the FLSA is set forth in Section 4207 of the Patient Protection and Affordable Care Act, Public Law 111-148 (``Affordable Care Act''). The provision requires employers to provide ``reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk.'' Employers are also required to 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.'' See 29 U.S.C. 207(r). The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010. To assist employers with complying with the new law, the Department has issued Wage and Hour Fact Sheet 73: ``Break Time for Nursing Mothers under the FLSA'' at https://www.dol.gov/whd/regs/compliance/whdfs73.pdf. The Department has also posted Frequently Asked Questions (FAQs) on its Web site that reiterate the information provided in the Fact Sheet in a different format. Until the Department issues final guidance, the Department's enforcement will be based on the statutory language and the guidance provided in WHD Fact Sheet 73 and the associated FAQs. Employers, employees, and other stakeholders have requested additional guidance from the Department about the law's requirements and the Department wants to provide an opportunity for the public to submit information and comments for its consideration. The Department will consider the information and comments received in response to this Request for Information in formulating further guidance for the regulated community on complying with the new break time requirement. Until any such further guidance is issued, the RFI provides useful information for employers to consider in establishing policies for nursing employees. At this time, the Department does not plan to issue regulations implementing this provision. Because of the wide variety of workplace environments, work schedules, and individual factors that will impact the number and length of breaks required by a nursing mother, as well as the manner in which an employer complies with break time requirement, the Department believes that regulations may not be the most useful or effective means for providing initial guidance to employers and employees. If, however, based on its experience administering and enforcing the break time requirement and the comments received in response to this Request for Information, the Department determines that regulations are necessary, it will initiate rulemaking at that time. This Request for Information contains the Department's preliminary interpretations of the law's requirements. The Department's identification of key issues related to the law and the development of this Request for Information have been informed by the Department's meetings and discussions with various stakeholders, including employer organizations and representatives, public health and women's organizations, state agencies that have experience administering state laws concerning workplace lactation, and individuals and businesses that have contacted the Department with questions about the new law. The Department looks forward to continuing to receive input and invites the public to comment on the break time requirement generally and on the Department's preliminary interpretations in this Request for Information. All comments will be made publicly available.