Buried in last year's health care bill is a little-known amendment to the Fair Labor Standards Act ("FLSA") that requires employers of non-exempt hourly employees to provide rest breaks for nursing mothers.

Specifically, Section 7 of the FLSA now requires employers to provide reasonable break times when an employee needs to express breast milk for her nursing child – up to one year after the child's birth. Employers are also required to provide a private, dedicated space other than a bathroom, which may be used by the lactating mother. The break time requirement officially became effective on March 23, 2010, when the Patient Protection and Affordable Care Act was signed into law. However, the US Department of Labor’s Wage and Hour Division ("WHD") recently issued preliminary interpretations of the new law and has requested information and input from the public on several issues raised by the legislation. The WHD is currently developing a draft final rule.

At a Glance – Highlights of WHD's interpretation of the new law

Who Must Comply? The law must be implemented by all public and private employers subject to the FLSA who employ 50 or more workers. Under the law, only non-exempt employees are specifically entitled to take these breaks (although exempt employees already have the discretion to take breaks as needed). Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance would impose an undue hardship (evaluated by looking at the difficulty and expense of compliance).

As-Needed Breaks: Employers must provide a reasonable amount of break time as frequently as needed by the nursing mother. While the frequency of the breaks needed as well a the duration of each break will likely vary, WHD suggests that lactating mothers typically will need to take breaks to express milk 2 to 3 times during an 8 hour shift, at 15-20 minutes per break.

Set Aside A Separate Space: A bathroom, even if private, is not a permissible location. An employer need not maintain a permanent, dedicated space, but the location must be appropriate for expressing milk. A temporary conversion of office or storage space, if shielded from view and free from intrusion, is acceptable.

Compensation Is Not Required: 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 the allotted break time to express milk must be compensated just like employees taking a break for any other reason.

The Most Employee-Protective Law Governs: The new law does not replace state laws that provide greater protections to employees. However, as Washington has no laws regulating break time for nursing mothers, the FLSA governs.

Feedback for the Feds: The interpretations described above are still preliminary. The public comment period has just concluded, and the WHD is now developing a final rule. In the meantime, WHD's current interpretation provides useful information for establishing policies for nursing employees.

The WHD "Break Time For Nursing Mothers" page contains additional information and guidance on this issue.   If you have questions about the information in this posting or your organization's likely compliance obligations, please contact the Foster Pepper Employment and Labor Relations Practice Group.