Breastfeeding/expressing requirements for employers

The 2010 Healthcare Reform Act amended the Fair Labor Standards Act (FLSA) by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has the need to express milk.

Under the Act, employers must now provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, where an employee may express breast milk. The FLSA does not require employers to pay employees for such break time. While this provision applies only to employees covered by overtime and minimum wage requirements, it does not apply to exempt employees, including teachers. See also Paraprofessional Wages/Rights.

But during the 2015 legislative session, the TCTA-supported HB 786 passed. The bill, which was signed by the governor on June 18 and became law Sept. 1, 2015, requires a public employer to develop a written policy which must state that the employer will support the right to express breast milk at the workplace and make reasonable accommodations. The employer must provide reasonable break time and a place, other than a multiple-user bathroom, that is private and can be locked, for the employee's use. It also prohibits the suspension or termination of an employee for asserting her rights under this section.

Exceptions

The FLSA requirements do not apply to employers with fewer than 50 employees, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. The FLSA’s provisions do not preempt a state law that provides greater protections to employees, which HB 786 provides to Texas' public employees, including teachers.

Most states have passed legislation that explicitly allows mothers to nurse/express breast milk in public or semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Some state laws require that employers provide reasonable time for an employee to breastfeed or express breast milk, or to coordinate designated break times to coincide with the employee’s need to breastfeed or express breast milk.

Accommodating breastfeeding and expressing breast milk

To allow employees to take advantage of the many health benefits of breastfeeding, employers may wish to consider drafting a written policy on breastfeeding and expressing breast milk in the workplace. The policy should include elements such as:

  • Flexible work schedules to provide time for expression of milk;
  • Provision of an accessible location allowing privacy (e.g., shielded from view and free from intrusion from co-workers and the public, a lock on the door);
  • Access to a nearby clean and safe water source and a sink for washing hands and rinsing out any breast-pump equipment; and
  • Access to hygienic/refrigerated storage alternatives for the mother to store her breast milk.