Typically, December is a slow month for litigators. Courts stop calling juries. We all take vacations. Typically, the closer we get to Christmas the slower it gets, except, apparently, for the federal agencies in Washington. Yesterday, the NLRB published its proposed posting regulations, and the Department of Labor published its preliminary interpretation of the recent federal lactation break mandate.
Here are the DOL’s preliminary thoughts on employers’ obligations to lactating women:
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Paid or unpaid breaks? Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, lactation breaks are covered by the same rules that govern other work day breaks. If the employer permits short breaks, usually 20 minutes or less, the time must be counted as hours worked and paid accordingly. Additional time used beyond the authorized paid break time could be uncompensated.
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What is a reasonable break time? Employers should consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk. The DOL believes that most women will need to take 2 to 3 breaks per 8 hour shift, each lasting between 15 and 20 minutes. These guidelines, however, are just that, and will vary from woman to woman depending on specific circumstances and needs.
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What is an appropriate lactation space? An employer has no obligation to maintain a permanent, dedicated space for nursing mothers. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom. The DOL also believes that an employee’s right to express milk includes the ability to safely store the milk.
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What qualifies as an undue hardship for employers with less than 50 employees? The difficulty or expense must be “significant,” which is a stringent standard that employers will only be able to meet in limited circumstances.
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Is there a relationship between lactation breaks and the FMLA? No. The DOL does not believe that breaks to express breast milk can be considered FMLA leave or counted against an employee’s FMLA leave entitlement.
The DOL is accepting public comment on these preliminary interpretations until February 22, 2011. Anyone may submit comments either electronically at www.regulations.gov, or by mail to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210.
This issue will remain hot in 2011 as we await the DOL’s final comments and as employers continue to figure out how to make these new obligations work in their specific workplaces.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.