State and Federal Laws
New York State Labor Law section 206-c, for example, requires employers to make reasonable efforts to provide clean, private spaces for employees who wish to pump breast milk and break time in which to do it. And section 4207 of the 2010 Patient Protection and Affordable Care Act (also known as "Health Care Reform") has similar provisions that now make workplace support of breastfeeding the law of the land thoughout the United States.
State laws, regulations and policies support and protect a woman’s right to breastfeed: NY Civil Rights Law § 79-e (1994) permits a mother to breastfeed her child in any public or private location.
New York is one of 39 states that offer protection for nursing mothers who breastfeed in public. NY CLS Civ R § 79-e (Article 7 Miscellaneous Provisions). 1994 N.Y. ALS 98; 1994 N.Y. LAWS 98; 1994 N.Y. S.N. 3999
§ 79-e. Right to breast feed. Notwithstanding any other provision of law, a mother may breast feed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether or not the nipple of the mother's breast is covered during or incidental to the breast feeding.
NY Labor Law § 206-c , (2007), Nursing Mothers in the Workplace Act, guarantees mothers the right to unpaid time and private space (not restroom) to nurse up to 3 year.
§ 206-c. Right of nursing mothers to express breast milk. An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.
See also NYS Department of Labor’s Guidelines Regarding the Rights of Nursing Mothers to Express Breast Milk in the Work Place.
10 NYCRR 405.21 requires hospitals to have written policies and procedures that assist and encourage women to breastfeed consistent with many of WHO’sTen Steps to Successful Breastfeeding.
NY Public Health Law § 2505-a -Breastfeeding Mothers’ Bill of Right, codified many of these regulations.
Amendment to Healthcare Law
Thursday, April 8, 2010
Employers now required to give reasonable break time to nursing mothers
Working women will be pleased to know that the Patient Protection and Affordable Care Act (Affordable Care Act), signed into law by the President on March 23, requires employers to provide a reasonable break time and a private place – other than a bathroom – for an employee to express breast milk for her nursing child for a period of one year after the child’s birth. Employers should note that this new requirement became effective on the date of enactment.
Under Section 4207, which amended the Fair Labor Standards Act to include this new rule, employers with fewer than 50 employees may be exempt if the requirement would impose an undue hardship.
State breast-feeding laws. Prior to the Affordable Care Act, many states enacted laws protecting nursing mothers, but many are very general, requiring only that a mother be allowed to breast-feed her baby in any location in which she is authorized to be (presumably including the workplace). A few states required employers to provide unpaid breaks for employees who need to express milk, unless the breaks would disrupt operations. Some employers were asked to make a reasonable effort to provide a private location for an employee that is close to her work station (other than a toilet stall).
Why is breast-feeding so important? The American Academy of Pediatrics, in a Policy Statement on Breast-feeding, recommends that women without any health problems exclusively breastfeed their infants for at least the first six months. According to the National Institutes of Health, breast-fed infants have fewer illnesses during the first year than babies who are not breast-fed. Breast milk can also help to protect infants against some common childhood illnesses and infections such as diarrhea, middle ear infections, and certain lung infections.
The Office on Women’s Health in the US Department of Health and Human Services notes that breast-fed babies visit the doctor less frequently, spend less time in the hospital and require less prescription medication than babies who are not breast-fed. In addition, because breast-fed babies are healthier, nursing mothers miss less work than mothers who do not breast-feed their babies. This translates into reduced health care costs for breastfed infants and lower medical insurance claims for employers.
What exactly are employers required to do? Under the new law, an employer must provide a reasonable break time for an employee to express breast milk for her nursing child each time the employee needs to express milk for a period of one year after the child’s birth (Fair Labor Standards Act (FLSA) Sec. 7(r)(1)(A), as added by Affordable Care Act Sec. 4207).
The employer must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for an employee to use when expressing breast milk (FLSA Sec. 7(r)(1)(B), as added by Affordable Care Act Sec. 4207).
Compensation not required. An employer does not have to compensate an employee receiving reasonable break time to express breast milk for any work time spent expressing breast milk during the break (FLSA Sec. 7(r)(2), as added by Act Sec. 4207 of the Affordable Care Act).
Undue hardship. An employer that employs fewer than 50 employees is not required to provide reasonable break time or a shielded place for nursing mothers to express breast milk if these requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the:
* financial resources,
* nature, or
of the employer’s business (FLSA Sec. 7(r)(3), as added by Affordable Care Act Sec. 4207).
Relationship with state laws. A state law that provides greater protections to employees is not preempted by these new federal requirements (FLSA Sec. 7(r)(4), as added by Affordable Care Act Sec. 4207).
Effective date. Because no specific effective date is provided by the Affordable Care Act, the new break time law for nursing mothers is considered effective on the date of enactment – March 23, 2010.
United States Department of LaborWage and Hour Division (WHD)
(July 2010) (PDF)
Fact Sheet #73: Break Time for Nursing Mothers under the FLSA
This fact sheet provides general information on the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (“PPACA”), which took effect when the PPACA was signed into law on March 23, 2010 (P.L. 111-148). This law amended Section 7 of the Fair Labor Standards Act (FLSA).
Employers are required 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.”
The FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).
Time and Location of Breaks
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.
A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.
Coverage and Compensation
Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.
Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, 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. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA .
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.