FMLA Articles

Do nursing breaks count as FMLA leave?

06/04/2020

Key to remember: The FMLA entitles employees to take leave to care for and bond with a child, but this doesn’t extend to nursing breaks.

Applies to: Private employers with 50 or more employees and all public employers.

Impact to customers: Employers should not count time for nursing breaks as FMLA leave.

Possible impact to JJK products/services: This information may find its way into the Essentials of FMLA Manual and will be on the FMLA Manager.

Despite the sweeping changes that have been going on for the last weeks and months, life does go on, including the birth of children. In the workplace, employees who become parents have certain rights and protections. The Family and Medical Leave Act (FMLA), for example, provides for job-protected leave for certain qualifying reasons, such as for the birth and to care for the child. A provision in the Fair Labor Standards Act (FLSA) entitles nursing mothers to take breaks to express breast milk. The FLSA does not place specific limits on how often employees may take such breaks, but they should be reasonable. Employers, in the meantime, may wonder how these two provisions relate; whether they may count such breaks toward an employee’s 12-week FMLA leave entitlement.

Employers may, perhaps, see such nursing breaks as tasks related to caring for or bonding with a child, which is a qualifying reason to take FMLA leave. The U.S. Department of Labor’s Wage and Hour Division (WHD), which enforces both the FMLA and the FLSA, addressed this issue in its request for information regarding the FLSA change implementing the nursing breaks.

The WHD indicated that it does not believe that breaks to express breast milk can properly be considered as FMLA leave or counted against an employee’s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the WHD does not consider expressing milk at work to constitute bonding with or caring for a newborn child. Also, while an eligible employee may take FMLA leave due to her own serious health condition, the WHD does not believe that expressing milk will typically be associated with a serious health condition under the FMLA.

There you have it. A pretty solid “no,” nursing breaks do not count as FMLA leave.

As background, the break time requirement that is now part of the FLSA was set forth in the Affordable Care Act. The provision requires employers 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.

The WHD has not published regulations regarding the breaks and has no plans to do so. It indicated that, because of the wide variety of workplace environments, work schedules, and individual factors that impact the number and length of breaks required by a nursing mother, as well as the manner in which an employer complies with break time requirement, regulations may not be the most useful or effective means for providing guidance to employers and employees.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.