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The Society for Human Resource Management (SHRM) has provided suggestions to the U.S. Department of Labor (DOL) on guidelines for employers to provide nursing mothers with reasonable break times and locations to express breast milk while at work.
The suggestions come at the request of the DOL and in response to a mandate in the health care reform law, which was enacted in March 2010. The law said that employers must provide a “reasonable” amount of break time and a location—other than a bathroom—for employees to express breast milk for up to one year following the birth of a child.
The law did not provide information about what would be considered a “reasonable” amount of time, nor did it specify what types of locations would be acceptable for certain kinds of employers, such as retail establishments in malls, who might have difficulty complying with such a requirement, given their available facilities.
The DOL reached out to SHRM and other stakeholders for input. SHRM polled its members and received over 1,000 responses.
In comments submitted Feb. 22, 2011, to the DOL’s Wage and Hour Division, SHRM noted that “many of SHRM’s members have had experience working with employees who are nursing to create arrangements that enable the employee to both work and express breast milk when needed.”
SHRM noted that the federal law does not pre-empt any state law that provides greater protections to employees. But the Society suggested that the DOL make clear that federal and state requirements would run concurrently, if both would apply. This could lead to certain issues, such as how to pay employees if, for example, a state law required that nursing break time be compensated.
The number of breaks to be provided might be another issue. The DOL states that nursing mothers typically will need breaks two or three times during an eight-hour shift to express milk, but SHRM noted that it is possible that employees would seek additional time. “SHRM respectfully requests that the DOL make clear that an employer has a right to request certification from a doctor for the need for more than 3 breaks per 8-hour shift,” its comments stated.
Similarly, SHRM asked the DOL to provide guidance on the length of such breaks. Many factors will affect how long a mother will need to express breast milk, including the location of the area set aside for this purpose and the setup required prior to using a pump. SHRM noted that most mothers will take only as much time as they need, but added that the DOL should make clear that an employer has a right to contact a doctor about the need for requested breaks that extend beyond 40 minutes—twice the time identified by the DOL for the task.
Finding a space appropriate for private expression of breast milk can be complicated, SHRM noted. SHRM suggested that the DOL provide specific guidance on:
Nontraditional office settings such as retail stores and restaurants will require special provisions, SHRM noted. “Where there is no private office, storage closet or other enclosed area, SHRM respectfully recommends that multiple employers be allowed to create a cooperative arrangement whereby they have one secure place that they share among them and that this place could rotate on a monthly or some other basis.”
Dialogue between employers and employees will be crucial to implementing the mandate, SHRM added. “The DOL notes that an employer may ask an expectant mother if she intends to take breaks to express breast milk while at work,” SHRM said in its comments. “SHRM suggests that this is neither necessary nor desirable. Indeed, asking this question may be seen as an invasion of privacy under state law.”
The Society’s comments asked the DOL to retract the applicable provision, discourage employers from asking the question and “place the burden for asking for breast milk expression breaks entirely on employees. This approach is consistent with the Americans with Disabilities Act accommodation process that is successfully used in the workplace today.”
Asked to comment on the amount of notice that employers will need before providing a facility for breast milk expression, SHRM said that employers should be informed “as early as is reasonably practicable, but in any event, not less that … 10 business days” before an employee has such a need.
Steve Bates is manager of online editorial content for SHRM. He can be reached at
DOL Seeks Comments on Break Time for Nursing Mothers,
SHRM Online Legal Issues, December 2010
Nursing Mothers Get a Break in Health Care Law,
HR News, April 2010
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