### §218d. Breastfeeding accommodations in the workplace

#### (a) In general

An employer shall provide—

(1) a reasonable break time for an employee to express breast milk for such employee's nursing child for 1 year after the child's birth each time such employee has need to express the milk; and

(2) 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.

#### (b) Compensation

#### (1) In general

Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance.

#### (2) Relief from duties

Break time provided under subsection (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.

#### (c) Exemption for small employers

An employer that employs less than 50 employees shall not be subject to the requirements of this section, 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.

#### (d) Exemption for crewmembers of air carriers

#### (1) In general

An employer that is an air carrier shall not be subject to the requirements of this section with respect to an employee of such air carrier who is a crewmember 1

#### (2) Definitions

In this subsection:

#### (A) Air carrier

The term "air carrier" has the meaning given such term in section 40102 of title 49.

#### (B) Crewmember

The term "crewmember" has the meaning given such term in section 1.1 of title 14, Code of Federal Regulations (or successor regulations).

#### (e) Applicability to rail carriers

#### (1) In general

Except as provided in paragraph (2), an employer that is a rail carrier shall be subject to the requirements of this section.

#### (2) Certain employees

An employer that is a rail carrier shall be subject to the requirements of this section with respect to an employee of such rail carrier who is a member of a train crew involved in the movement of a locomotive or rolling stock or who is an employee who maintains the right of way, provided that compliance with the requirements of this section does not—

(A) require the employer to incur significant expense, such as through the addition of such a member of a train crew in response to providing a break described in subsection (a)(1) to another such member of a train crew, removal or retrofitting of seats, or the modification or retrofitting of a locomotive or rolling stock; or

(B) result in unsafe conditions for an individual who is an employee who maintains the right of way.

#### (3) Significant expense

For purposes of paragraph (2)(A), it shall not be considered a significant expense to modify or retrofit a locomotive or rolling stock by installing a curtain or other screening protection.

#### (4) Definitions

In this subsection:

#### (A) Employee who maintains the right of way

The term "employee who maintains the right of way" means an employee who is a safety-related railroad employee described in section 20102(4)(C) of title 49.

#### (B) Rail carrier

The term "rail carrier" means an employer described in section 213(b)(2) of this title.

#### (C) Train crew

The term "train crew" has the meaning given such term as used in chapter II of subtitle B of title 49, Code of Federal Regulations (or successor regulations).

#### (f) Applicability to motorcoach services operators

#### (1) In general

Except as provided in paragraph (2), an employer that is a motorcoach services operator shall be subject to the requirements of this section.

#### (2) Employees who are involved in the movement of a motorcoach

An employer that is a motorcoach services operator shall be subject to the requirements of this section with respect to an employee of such motorcoach services operator who is involved in the movement of a motorcoach provided that compliance with the requirements of this section does not—

(A) require the employer to incur significant expense, such as through the removal or retrofitting of seats, the modification or retrofitting of a motorcoach, or unscheduled stops; or

(B) result in unsafe conditions for an employee of a motorcoach services operator or a passenger of a motorcoach.

#### (3) Significant expense

For purposes of paragraph (2)(A), it shall not be considered a significant expense—

(A) to modify or retrofit a motorcoach by installing a curtain or other screening protection if an employee requests such a curtain or other screening protection; or

(B) for an employee to use scheduled stop time to express breast milk.

#### (4) Definitions

In this subsection:

#### (A) Motorcoach; motorcoach services

The terms "motorcoach" and "motorcoach services" have the meanings given the terms in section 32702 of the Motorcoach Enhanced Safety Act of 2012 (49 U.S.C. 31136 note).

#### (B) Motorcoach services operator

The term "motorcoach services operator" means an entity that offers motorcoach services.

#### (g) Notification prior to commencement of action

#### (1) In general

Except as provided in paragraph (2), before commencing an action under section 216(b) of this title for a violation of subsection (a)(2), an employee shall—

(A) notify the employer of such employee of the failure to provide the place described in such subsection; and

(B) provide the employer with 10 days after such notification to come into compliance with such subsection with respect to the employee.

#### (2) Exceptions

Paragraph (1) shall not apply in a case in which—

(A) the employee has been discharged because the employee—

(i) has made a request for the break time or place described in subsection (a); or

(ii) has opposed any employer conduct related to this section; or

(B) the employer has indicated that the employer has no intention of providing the place described in subsection (a)(2).

#### (h) Interaction with State and Federal law

#### (1) Laws providing greater protection

Nothing in this section shall preempt a State law or municipal ordinance that provides greater protections to employees than the protections provided for under this section.

#### (2) No effect on title 49 preemption

This section shall have no effect on the preemption of a State law or municipal ordinance that is preempted under subtitle IV, V, or VII of title 49.

(June 25, 1938, ch. 676, §18D, as added Pub. L. 117–328, div. KK, §102(a)(2), Dec. 29, 2022, 136 Stat. 6093.)

#### **Editorial Notes**

#### References in Text

The Motorcoach Enhanced Safety Act of 2012, referred to in subsec. (f)(4)(A), is subtitle G of title II of div. C of Pub. L. 112–141, which is set out as a note under section 31136 of Title 49, Transportation.

#### Prior Provisions

Provisions similar to those in subsecs. (a) to (c) of this section were contained in section 207(r) of this title prior to repeal by Pub. L. 117–328, §102(a)(1).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date

Section effective on Dec. 29, 2022, see section 103(a) of div. KK of Pub. L. 117–328, set out as an Effective Date of 2022 Amendment note under section 207 of this title.

#### Delayed Application of Law to Employees of Rail Carriers

Pub. L. 117–328, div. KK, §103(d), Dec. 29, 2022, 136 Stat. 6096, provided that:

"(1) In general.—Section 18D of the Fair Labor Standards Act of 1938 [29 U.S.C. 218d] (as added by section 102(a)) shall not apply to employees who are members of a train crew involved in the movement of a locomotive or rolling stock or who are employees who maintain the right of way of an employer that is a rail carrier until the date that is 3 years after the date of enactment of this Act [Dec. 29, 2022].

"(2) Definitions.—In this subsection:

"(A) Employee; employer.—The terms 'employee' and 'employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

"(B) Employees [sic] who maintains the right of way; rail carrier; train crew.—The terms 'employee who maintains the right of way', 'rail carrier', and 'train crew' have the meanings given such terms in section 18D(e)(4) of the Fair Labor Standards Act of 1938 [29 U.S.C. 218d(e)(4)], as added by section 102(a)."

#### Delayed Application of Law to Employees of Motorcoach Services Operators

Pub. L. 117–328, div. KK, §103(e), Dec. 29, 2022, 136 Stat. 6097, provided that:

"(1) In general.—Section 18D of the Fair Labor Standards Act of 1938 [29 U.S.C. 218d] (as added by section 102(a)) shall not apply to employees who are involved in the movement of a motorcoach of an employer that is a motorcoach services operator until the date that is 3 years after the date of enactment of this Act [Dec. 29, 2022].

"(2) Definitions.—In this subsection:

"(A) Employee; employer.—The terms 'employee' and 'employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).

"(B) Motorcoach; motorcoach services operator.—The terms 'motorcoach' and 'motorcoach services operator' have the meanings given such terms in section 18D(f)(4) of the Fair Labor Standards Act of 1938 [29 U.S.C. 218d(f)(4)], as added by section 102(a)."

1 So in original. Probably should be followed by a period.