Section 7(r) of the Fair Labor Standards Act (FLSA) requires 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 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.” Employees are entitled to break time to express breast milk if they are employees who must be paid overtime under section 7 of the FLSA. Employees who are exempt from overtime under section 7 of the FLSA are not entitled to break time under federal law. However, the FLSA requirement does not preempt State laws that provide greater protections to employees (e.g., providing break time for exempt employees, providing compensated break time, or providing break time beyond one year after the child’s birth).
- Are nursing mothers entitled to reasonable break time and space to express milk while working during the COVID-19 pandemic?
- Are employers required to pay employees for break time to express milk when employees are working, including teleworking, during COVID-19?
1. Are nursing mothers entitled to reasonable break time and space to express milk while working during the COVID-19 pandemic?
Yes. All employers covered by the FLSA must comply with the break time for nursing mothers provisions unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship. Employers are obligated to follow the FLSA break time for nursing mothers requirements regardless of where their eligible employees are located.
2. Are employers required to pay employees for break time to express milk when employees are working, including teleworking, during COVID-19?
It depends. Under the FLSA, employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, employees who use that break time to express milk must be compensated in the same way that other employees are compensated for break time. Further, the FLSA generally requires that the employer pay employees for the time unless they are completely relieved from duty.
For additional information about the break time for nursing mothers requirements under the FLSA, please refer to https://www.dol.gov/agencies/whd/nursing-mothers. The website includes links to additional resources for adapting workspaces to accommodate nursing mothers in various settings..
For additional information or to find out how to file a complaint, visit our Wage and Hour Division Website: https://www.dol.gov/agencies/whd 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).
For further information about COVID-19, please visit the HHS’s Centers for Disease Control and Prevention.