Employers are not required to pay employees for these breaks, but many employers may find it less burdensome to provide paid breaks than to track the time taken. Furthermore, docking pay for breaks of short duration (5–20 minutes) may conflict with other Department of Labor regulations that provide that such breaks may not be unpaid.
Employers with fewer than 50 employees may not be subject to this provision if they can show that 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. The “undue hardship” bar is often interpreted to be quite high in the context of other statutes, however, and employers should not lightly invoke this exception.
The law does not provide any guidance on how often breaks must be given, except to state that they are required “each time such employee has need to express the milk.” No guidance is given on how long the break must be to be considered “reasonable.” While further guidance from the Department of Labor may be forthcoming, in the meantime employers must immediately begin to comply with the requirements of the law, and alert managers to the fact that breaks and space must be provided in response to requests.
Several states already require employers to provide breaks for nursing mothers to express milk. For example, all California employers are required to provide a reasonable amount of break time and the use of a room or other location to accommodate an employee desiring to express breast milk, unless it would seriously disrupt the employer’s operations. New York has a similar law requiring employers to provide a reasonable amount of break time and a private room or location to express milk for three years after a child’s birth. Arkansas, Colorado, Connecticut, the District of Columbia, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, and Vermont also have laws relating to expressing milk in the workplace, although the specific requirements imposed on employers by each law vary.