By Labor and Employment Attorney Jennifer Lankford
Recently, I wrote an article titled “Maternity and Paternity Leave for Nurse Practitioners? What You Need To Know,” where I addressed common concerns of soon-to-be nurse practitioner moms and dads and their legal entitlement to family leave. This article addresses another common concern that arisies when a new mom return to the workplace – pumping at work.
The reality is simple- a new mom, who is nursing her infant, will need to pump breast milk during the day. I am often asked what rights nursing moms have at work. “Do I get a private place to pump? Will I get paid? How often can I take a break to pump?” This article provides answers to all of these, and more questions.
How employees are paid at work is governed by the Fair Labor Standards Act. If you are non-exempt, i.e., covered by the Fair Labor Standards Act, then in addition to minimum wage and overtime requirements, you are entitled to lactation break rights. A few years ago, the Affordable Care Act amended the Fair Labor Standards Act to require employers to provide “reasonable break time” for an employee to express breast milk for her nursing child for one year after the child’s birth.
Employers are not only required to allow for these reasonable breaks for nursing moms, but are also required to provide a place, other than a bathroom, that is private, for the employee to express breast milk. Simply, if you meet the requisite criteria – an employee who needs to expel breast milk and it is within one year of your child’s birth – you are entitled to these reasonable breaks. Please keep in mind, however, that if you are employed with a company of 50 or less employees, then your boss may not have to provide such breaks if to do so would be an “undue hardship.” This is a legal term of art and if your employer uses it to prohibit breast pumping breaks, your best course of action is to speak with counsel to see if a undue hardship truly exists.
As you saw, the law requires that the space provided by your employer be private, meaning that it must be shielded from view and free from intrusion from co-workers and the public. The space does not, however, need to be dedicated solely to a nursing mother’s use. In other words, your employer has acted appropriately if it has provided a temporary space for lactation breaks or has simply made a certain, private space available, as needed. As to payment, an employer is not required under the FLSA to compensate an employee for time spent on lactation breaks. Where an employer is already providing a compensated break, however, an employee who uses the break time for breast pumping must be compensated in the same manner as other employees.
While the above sets forth federal laws for nursing mothers, state law may provide greater protection. For instance, the state in which you practice may offer compensated break time for nursing moms or offer break time beyond the federally permissible one-year period. Specifically, 27 states, as well as the District of Columbia, have laws specific to nursing mothers in the workplace. Please consult the National Conference of State Legislature’s website to determine what the particular laws of your state are as it pertains to lactation breaks.
By way of example, in Tennessee, where I practice law, employers must “provide reasonable unpaid break times each day to an employee who needs to express breast mild for her infant child.” Tenn. Code Ann. § 50-1-305. Tennessee law additionally requires employers to make reasonable efforts to “provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can pump in private.” This law closely mirrors the federal law and does not extend the one-year limitations period.
The above provides nurse practitioners with the basics on their rights as a nursing mom returning to work. If you have additional questions on your rights under the Fair Labor Standards Act or state law pertaining to lactation breaks, maternity and paternity leave, or any other area of employment law, please do not hesitate to contact me.
Jennifer Lankford is an associate attorney at Thompson Burton and focuses her practice on labor and employment law. She has vast experience helping businesses and individuals with a variety of employment issues at the state and federal level. Jennifer lives in Nashville, TN with her husband, Brent, and their miniature schnauzer, Bo.