Do I have to let a nursing mother take time on the clock to pump or should she be using allowed “lunch/break” time to do so?

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Do I have to let a nursing mother take time on the clock to pump or should she be using allowed “lunch/break” time to do so?

I have an employee who not only takes her full allowed lunch hour but also takes up to another hour every day to pump since she returned from maternity leave. Other employees are asking if that is “fair” since they have to pick up the slack for her undone work because she is missing up to 2 hours a day as compared to other employees who only get their lunch hour off.

Asked on December 1, 2011 under Employment Labor Law, Pennsylvania

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First of all, the applicable statute is known as the "Reasonable Break Time for Nursing Mothers"; it only applies to those in FLSA non-exempt jobs. As a general rule, most retail, restaurant, and other jobs that pay by the hour are not exempt from the FLSA; most salaried positions that do not receive overtime pay are exempt from the FLSA (i.e. mothers in these positions are not covered by the new law). Also, while employers with fewer than 50 employees are not automatically exempt, they may argue that the law creates an undue hardship and be relieved of compliance with the law (the undue hardship exemption is not available to employers with more than 50 employees). Additionally, this law only covers mothers pumping for a baby less than a year old.

The law mandates that employers give nursing mothers reasonable time to express milk. The law does not prescribe requirements as to the frequency or duration of pumping breaks but rather looks to what is reasonable in a given situation. The Department of Labor has stated that it expects nursing mothers typically will need breaks to express milk 2 to 3 times during an 8 hour shift.

Break time used for milk expression does not have to be paid, although this law does require that mothers who use their break time to express milk be compensated in the same way as other employees’ breaks, if such time is so provided. Further, an employee must be completely relieved from duty while taking a break covered or their employer must compensate the mother for her time.


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