Buried in the voluminous Health Care Reform Act is a requirement that employers provide reasonable break times and an appropriate place for nursing mothers to express breast milk for one year after the child’s birth.

On December 21, 2010, the U.S. Department of Labor published a request for comment concerning the implementation of this requirement and its preliminary interpretation of it.  Responding to “several inquiries” concerning the relationship of the break time provision to the FMLA, the DOL stated that it “does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement.” Under the FMLA, an employee may take time off to “care for” a newborn, which the FMLA regulations refer to as “bonding time.” In its recent notice, the DOL explained that it “does not consider expressing milk at work to constitute bonding with or caring for a newborn child.”  

The DOL also stated that if an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII. The DOL also stated that if an employer terminates a nursing mother employee because she takes breaks to express milk, the DOL may pursue such a claim on behalf of the employee.

In addition to addressing the interaction between the break time requirement and the FMLA, the DOL’s recent notice also discusses when such breaks must be paid, the length and frequency of “reasonable” break times, the type of place employers must provide, and the nature and scope of the undue hardship exemption.

To provide employees and employers with additonal information concerning workplace breastfeeding programs, the DOL has launched a new website on this specific topic.

Comments on the DOL’s preliminary interpretations of the break time and place requirement must be received by the DOL no later than February 22, 2011.