Eve is employed as a counter person at Cars-R-Us, an auto parts store with twenty employees. Eve recently returned to work after giving birth. She asked Cars-R-Us for periodic breaks to express her breast milk. She also asked the company provide her with a dedicated, private room to use her breast pump.
Which of the following statements is correct?
A. Cars-R-Us can deny Eve’s request because it has less than 50 employees.
B. Cars-R-Us can deny Eve’s request unless she has worked for the Company more than 1,250 hours during the consecutive twelve-month period preceding her request.
C. Cars-R-Us should permit Eve reasonable lactation breaks, but it may require her to use the women’s bathroom to express milk.
D. Cars-R-Us should permit Eve to take a reasonable lactation break in a private location, unless to do so would pose an undue hardship.
The correct answer is D. The Patient Protection and Affordable Care Act signed by President Obama in 2010 included an amendment to the FLSA to allow non-exempt nursing mothers to take breaks to pump breast milk at work. The FLSA’s break time amendment does not apply to employers with fewer than 50 employees if the law would impose an “undue hardship” on the employer. Undue hardship is determined by looking at the difficulty or expense of compliance in comparison to the size, financial resource, nature and structure of the employer’s business. The employer must provide a location (other than a bathroom) that is shielded from view and free from intrusion from co-workers and the public. A bathroom, even if private, is not a permissible location for the break.
HR Takeaway: Even if an employer has less than 50 employees, it should attempt to comply with the FLSA amendment because undue hardship is a fairly high threshold to meet. The FLSA amendment does not define what is a reasonable break time or describe how frequently breaks must be given. Employers should generally defer to the employee with respect to the length of the break and the number of breaks taken. Employers do not need to dedicate a space solely for nursing mothers’ use, but the location “must be functional as a space for expressing milk.” Generally speaking, the space should have a locking door, electrical outlet, adequate ventilation, and a chair. Many companies have developed lactation break policies to specify which employees are eligible to take lactation breaks, to identify a lactation location, and to clarify whether lactation breaks are paid or unpaid.