Department of Management Services Division of Human Resource Management
PROGRAM GUIDELINES
SUBJECT:
Administration of the Nursing Mother Provision of the Federal Patient Protection and Affordable Care Act of 2010
STATUTORY/RULE REFERENCE:
State – Rule 60L-34.0031(2), Florida Administrative Code (F.A.C.)
Federal – Fair Labor Standards Act (FLSA) of 1938, 29 USC § 207(r); Civil Rights Act of 1964 (Title VII)
EFFECTIVE DATE:
July 29, 2010
Revised: September 9, 2014
FORMS:
N/A
ADDITIONAL REFERENCE MATERIAL:
U.S. Wage and Hour Fact Sheet #73
I. SCOPE AND PURPOSE.
The Patient Protection and Affordable Care Act was signed into law by President Obama on March 23, 2010. This comprehensive health care reform legislation adds subsection (r) to Section 7 of the FLSA, codified as 29 USC § 207(r), requiring employers to grant break times for nursing mothers to express breast milk and specifying criteria for the location of such breaks. Specifically, Section 207 of the new law provides that, for a period of up to one year following a child’s birth, employers must give an employee:
1. a “reasonable break time” each time she needs to express breast milk; and
2. a location, other than a bathroom, shielded from view and free from intrusion, which may be used by the employee to express breast milk.
This particular amendment to the FLSA became effective when the health care reform bill was signed on March 23, 2010. However, the Department of Labor has not issued regulations regarding these new requirements. The purpose of this document is to assist state agencies in complying with this new provision in a manner that is, where appropriate, consistent with State Personnel System human resource policies and, to the best of our knowledge, not in conflict with any applicable federal law or regulation.
Additionally, U. S. Equal Employment Opportunity Commission (EEOC) guidelines issued July 14, 2014, state that lactation is a medical condition related to pregnancy or childbirth. Under this guidance, agencies must allow employees to modify their schedules or use sick leave for lactation-related needs, in the same manner as they would for other medical conditions where an accommodation or the granting of sick leave is appropriate.
If necessary, this guideline will be updated to conform to any federal regulations that may be issued. II. DEFINITIONS.
III. APPLICABLE STATUTORY AND RULE PROVISIONS. A. Statutory Provisions
State - N/A
Federal - Fair Labor Standards Act of 1938, 29 USC § 207(r):
(r)(1) An employer shall provide—
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
(B) 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.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.
EEOC – Enforcement Guidance: Pregnancy Discrimination and Related Issues dated July
14, 2014 section: I.A.4. Medical Condition Related to Pregnancy or Childbirth states: a. In General
Title VII prohibits discrimination based on pregnancy, childbirth, or a related medical condition. Thus, an employer may not discriminate against a woman with a medical condition relating to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions.
b. Discrimination Based on Lactation and Breastfeeding
conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Finally, because only women lactate, a practice that singles out lactation or breastfeeding for less favorable treatment affects only women and therefore is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.
Aside from protections under Title VII, female employees who are breastfeeding also have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that requires employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk.
B. Rule Provisions
Rule 60L-34.0031 (F.A.C.) Regular Time and Overtime
(2) Agencies shall refer to the FLSA regarding what constitutes compensable hours of work. IV. PROCEDURE.
In order to ensure proper compliance with 29 USC § 207(r) and Title VII, the following information is provided for State Personnel System agencies:
Agencies need to ensure that the managers and supervisors of every work unit are aware of the break requirements under 29 USC § 207(r) and have appropriate contingency plans in place that will enable them to provide an appropriate accommodation when an eligible employee makes a request.
Agencies need to be aware that employees are eligible to request and use available sick leave because lactation is a pregnancy-related medical condition under Title VII. If the employee does not have accrued leave or does not wish to use accrued leave, the employee must use authorized leave without pay.
The State of Florida has a long standing operational practice of administering attendance and leave in 15-minute increments. Therefore, the minimum amount of time that may be recorded for compensable hours or hours for leave without pay is 15 minutes and all fractions of an hour must be rounded to the nearest quarter of an hour. Although Rule 60L-34, F.A.C., is currently silent regarding a rounding method, the long standing practice of the State Personnel System is to use the following guide:
Rounding Standard
Minutes Used Minutes Rounded Leave Charged
0-7 00 00
8-22 15 .25
23-37 30 .50
38-52 45 .75
The following policy statements are consistent with current state statutory and rule authority: Break Times
Although the new FLSA provision does not include a definition of “reasonable” break time, nor require that such break times be compensable, recent guidance issued by the U.S. Department of Labor indicates that employers are required to provide a reasonable amount of break time to express milk …”as frequently as needed by the nursing mother”. Additionally, when employers already provide compensated breaks, an employee who uses that break time to express milk… “must be compensated in the same way that other employees are compensated for break time”. Consequently, since the State Personnel System has a long standing practice of granting up to two 15-minute breaks with pay per full workday (when feasible and/or as stipulated in certain collective bargaining agreements) and such breaks must be compensable in accordance with FLSA provisions (that recognize and govern rest periods of less than 20 minutes), employees can use these already established breaks to express milk. However, to the extent that such breaks are not sufficient to meet the employees’ needs, additional measures may be necessary such as allowing employees to extend their breaks in increments of 15 minutes (unpaid or covered by personal leave). Note: Normally, it is not good business practice to allow paid rest breaks to be extended through use of personal leave with or without pay. However, to the extent it is a reasonable accommodation of this law, agencies may exercise their discretion to do so. Otherwise employees will need to request leave with or without pay and use their unpaid meal periods as needed. Where feasible, the agency may also place such employees on a flexible work schedule that allows them to offset any unpaid time.
Although the new FLSA provision was expressly created for employees covered by the FLSA (included employees), agencies are encouraged to accommodate excluded employees of the Career Service and Selected Exempt Service, as well as Senior Management Service employees if, at the supervisor’s discretion, it is practicable to do so without imposing an undue burden on the work unit. Agencies should clearly state their policy with regard to excluded employees and ensure it is being applied consistently.
In order to ensure that sufficient time has been provided to accommodate this activity, travel time (if any) between the employee’s work location and the private location should be included in the determination of how long the breaks need to be.
Leave time
Sick leave use is authorized for this purpose, as lactation is considered a pregnancy-related medical condition under Title VII.
Annual Leave, Regular Compensatory Leave, Special Compensatory Leave, or Leave Without Pay may also be used to cover the time needed by the employee to express breast milk.
Locations
Locations cannot be a restroom (even if a private one), toilet stall or space within a restroom, as stipulated by Section 207(r)(1)B. of the FLSA.
Temporarily created spaces are sufficient as long as they meet the statutory requirements of Section 207(r)(1)B. of the FLSA
The location does not have to function solely as a space dedicated for expressing breast milk, but to meet statutory requirements it must be available to nursing mothers when needed.
All locations must be shielded from view and free from intrusion from coworkers or the public. The room or location may include the employee’s normal work space if it otherwise meets the requirements of Section 207(r)(1)B.
Agencies should bear in mind that, for any room to be reasonably considered an appropriate lactation place, it should meet some minimal standards, e.g., a door with a lock for privacy, a table or flat surface to hold the breast pump, a chair, and an electrical outlet. In the event there is a cost for any modifications that may be needed, such as adding a lock on a door, it is the landlord’s responsibility for any building modifications similar to modifications pursuant to ADA requirements.
There are no state rules prohibiting designation of space for this need and agencies can include such an area in their space planning in the same way that they plan for meeting rooms and other shared spaces to fit their needs.
There are no requirements that the employer provide nursing mothers personal supplies (such as breast pump, attachment kit, disinfectant wipes, a private refrigerator or cooler) to express breast milk at work.
Preparer: ABG/DOS
