What to Do if Employee Prefers Bathroom for Expressing Milk

October 29, 2010 (PLANSPONSOR.com) – A provision of the new health care reform law requires employers to provide a place, other than a bathroom, for breastfeeding employees to express milk, but what if the employee prefers the bathroom?

Answering a question from the audience at BLR’s National Employment Law Update, Stephen Woods, a partner in the Greenville, South Carolina, office of Ogletree, Deakins, Nash, Smoak & Stewart, PC, said the “catalyst of risk” in this situation can be minimized by documenting the request, making it clear that this is the employee’s decision, according to BLR. However, he reminded the audience that if the employee raises the issue later, technically, the employer did violate the law.  

A Department of Labor Fact Sheet on the rule said employers are required 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.”  

Only employees who are not exempt from the Fair Labor Standards Act’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements, they may be obligated to provide such breaks under State laws, the DoL noted.   

Employers with fewer than 50 employees can be exempted from the requirement if compliance with the provision would impose an undue hardship.  

The DoL fact sheet is here.