For new mothers, transitioning back to the workplace after a maternity leave can be difficult. However, this time can become even harder when employers fail to provide employees the nursing breaks that they deserve. 

What laws protect nursing mothers at work?

In 2010, the Affordable Care Act amended the Fair Labor Standards Act to protect nursing mothers in the workplace. This amendment forces employers to provide a break time to nursing mothers for at least one year following the birth of a child. There are no regulations around the number of breaks that a nursing mother is allowed per day, as they vary from woman to woman. Therefore, a nursing mother should be legally allowed to take as many breaks as needed throughout the day as long as they are considered to be “reasonable” amounts of time.

Although the Affordable Care Act did mandate that employers have to provide a place for employees to breastfeed, it did not say that the area had to be reserved exclusively for breastfeeding mothers. As long as the area is not a bathroom, and is private so other employees cannot walk in or see, the employer is following the law. Many employers have rooms where employees can rest or lay down when they aren’t feeling well or are tired. These rooms are private and can be locked from the inside, therefore they are often used as nursing areas for new mothers. Any room that is provided to you for nursing must be available when you need it, and must be functional for nursing. If you feel that the room does not have what you need in order to properly nurse, whether it is enough space or privacy, then your employer is not abiding by the law.

Employers do not need to make a space available if there are no employed nursing mothers. If you’re pregnant or trying to get pregnant, and fear that you won’t have a place to nurse after maternity leave, talk to your employer. If you’re the first employee within the company who will need a nursing room, that’s probably why there’s not one available yet. Legally, there’s no reason for your employer to have a room available until the need arises.

Does this law apply to me?

Because nursing mothers are protected under the Fair Labor Standards Act, any employer who is covered by this act must follow it. However, the law only applies to employees who are not exempt from section 7 of the Fair Labor Standards Act. Some examples of employees who are exempt from this section, and therefore do not have a legal right to take nursing breaks are:

  • Babysitters or those employed as companions to the elderly
  • Seasonal employees, such as those at an amusement park or recreational center
  • Executive, administrative and professional employees, including teachers in both elementary and secondary schools
  • Railroad or air carrier employees
  • Service workers who live within their employer’s home
  • Employees who work for small newspaper or telephone companies
  • Outside sales employees
  • Some commissioned employees
  • Farmworkers

The definition of exempt employees is very narrowly defined, so it’s always recommended to reach out to your local Wage and Hour Division Office if you’re questioning what type of employee you are.

Every business, no matter how large or small, must follow the law. However, if a business has less than 50 employees and can prove that providing a nursing mother with break time would impose an undue hardship, they are not legally required to do so. To prove undue hardship, the Department of Labor looks at the difficulty and financial burden of giving break times in comparison with the size, nature and structure of the employer’s business. 

Despite the fact that the FLSA does not legally require employers to give nursing breaks to exempt employees, the Department of Labor encourages employers to do so regardless. In addition, there are many state laws that may require employers to do so, even to employees who are not covered by the FLSA. These state laws overrule the limitations of the FLSA. For example, the federal law states that nursing breaks are only required for non-exempt employees, however the Colorado state law says that all employees should be allowed to nurse as needed. Therefore, all employees are protected in the state of Colorado.

Do I get paid for these breaks?

Even when an employer is legally required to provide breaks for nursing, they do not have to compensate you. However, if you already receive a paid break and you decide to use that time to nurse, then the employer must still pay you. For example, if your job provides you with a paid one-hour lunch break per day, and you use part of that lunch break to nurse, then you will still be compensated for the entire break as usual.

What do I do if my employer doesn’t give me the breaks that I deserve?

If you feel that your employer is not giving you the break time that you legally deserve, it’s important to speak up. To file a complaint, you’ll need to provide the Department of Labor with your contact and employment information, as well as a description of your complaint and the date of birth of your child. Once a complaint has been filed, the Department of Labor will investigate it on your behalf. The investigation may include a review of the employer’s records, interviews with certain staff members and a meeting with the actual employer.

If the employer is found to have violated the Fair Labor Standards Act, the company may face fines or in extreme circumstances, criminal prosecution.

Some employees may be hesitant to file a complaint against their employer, however they shouldn’t fear repercussions. Even though your claim is shared with the employer so that they can prepare a response, you are protected from retaliation. Employers cannot legally discriminate against you or terminate your employment because you filed a complaint.