Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 80073 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submissions of responses. 

A copy of the proposed information 

collection request can be obtained by 

contacting the employee listed in the 

FOR FURTHER INFORMATION CONTACT

section of this notice, or viewed on the 

Internet by selecting ‘‘Rules & Regs’’, and 

then selecting ‘‘FedReg.Docs’’. On the 

next screen, select ‘‘Paperwork 

Reduction Act Supporting Statement’’ to 

view documents supporting the Federal 

Register notice. 

III. Current Actions 

This notice contains a request for 

public comment on the extension of the 

information collection for existing 

notification, recordkeeping, and 

reporting provisions for radiation 

sampling and exposure records. MSHA 

does not intend to publish the results 

from this information collection and is 

not seeking approval to either display or 

not display the expiration date for the 

OMB approval of this information 

collection. 

There are no certification exceptions 

identified with this information 

collection and the collection of this 

information does not employ statistical 

methods. 

Type of Review: Extension. 

Agency: Mine Safety and Health 

Administration. 

OMB Number: 1219–0003. 

Frequency: On Occasion. 

Affected Public: Business or other forprofit. 

Cost to Federal Government: $747. 

Total Burden Respondents: 5. 

Total Number of Responses: 255. 

Total Burden Hours: 502 hours. 

Total Hour Burden Cost: $17,018. 

Comments submitted in response to 

this notice will be summarized and 

included in the request for Office of 

Management and Budget approval of the 

information collection request; they will 

also become a matter of public record. 

Dated: December 14, 2010. 

Patricia W. Silvey, 

Director, Office of Standards, Regulations, 

and Variances. 

[FR Doc. 2010–31815 Filed 12–20–10; 8:45 am] 

BILLING CODE 4510–43–P 

DEPARTMENT OF LABOR 

Wage and Hour Division 

RIN 1235–ZA00 

Reasonable Break Time for Nursing 

Mothers 

AGENCY: Wage and Hour Division, 

United States Department of Labor. 

ACTION: Request for Information from 

the public. 

SUMMARY: This notice is a request for 

information from the public regarding 

the recent amendment to the Fair Labor 

Standards Act (FLSA) that requires 

employers to provide reasonable break 

time and a place for nursing mothers to 

express breast milk for one year after 

their child’s birth. The Department of 

Labor (‘‘the Department’’) administers 

and enforces the FLSA through its Wage 

and Hour Division. Contained in this 

notice are the Department’s preliminary 

interpretations of the new break time 

amendment to the FLSA. The 

Department seeks information and 

comments for its review on various 

issues addressed in this notice, as it 

considers how best to help employers 

and employees understand the 

requirements of the break time for 

nursing mothers law. 

The break time requirement that is 

now part of the FLSA is set forth in 

Section 4207 of the Patient Protection 

and Affordable Care Act, Public Law 

111–148 (‘‘Affordable Care Act’’). The 

provision requires employers to provide 

‘‘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.’’ 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.’’ See 

29 U.S.C. 207(r). 

The break time requirement became 

effective when the Affordable Care Act 

was signed into law on March 23, 2010. 

To assist employers with complying 

with the new law, the Department has 

issued Wage and Hour Fact Sheet #73: 

‘‘Break Time for Nursing Mothers under 

the FLSA’’ at http://www.dol.gov/whd/ 

regs/compliance/whdfs73.pdf. The 

Department has also posted Frequently 

Asked Questions (FAQs) on its Web site 

that reiterate the information provided 

in the Fact Sheet in a different format. 

Until the Department issues final 

guidance, the Department’s enforcement 

will be based on the statutory language 

and the guidance provided in WHD Fact 

Sheet #73 and the associated FAQs. 

Employers, employees, and other 

stakeholders have requested additional 

guidance from the Department about the 

law’s requirements and the Department 

wants to provide an opportunity for the 

public to submit information and 

comments for its consideration. The 

Department will consider the 

information and comments received in 

response to this Request for Information 

in formulating further guidance for the 

regulated community on complying 

with the new break time requirement. 

Until any such further guidance is 

issued, the RFI provides useful 

information for employers to consider in 

establishing policies for nursing 

employees. 

At this time, the Department does not 

plan to issue regulations implementing 

this provision. Because of the wide 

variety of workplace environments, 

work schedules, and individual factors 

that will 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, the Department believes 

that regulations may not be the most 

useful or effective means for providing 

initial guidance to employers and 

employees. If, however, based on its 

experience administering and enforcing 

the break time requirement and the 

comments received in response to this 

Request for Information, the Department 

determines that regulations are 

necessary, it will initiate rulemaking at 

that time. 

This Request for Information contains 

the Department’s preliminary 

interpretations of the law’s 

requirements. The Department’s 

identification of key issues related to the 

law and the development of this 

Request for Information have been 

informed by the Department’s meetings 

and discussions with various 

stakeholders, including employer 

organizations and representatives, 

public health and women’s 

organizations, state agencies that have 

experience administering state laws 

concerning workplace lactation, and 

individuals and businesses that have 

contacted the Department with 

questions about the new law. The 

Department looks forward to continuing 

to receive input and invites the public 

to comment on the break time 

requirement generally and on the 


srobinson on DSKHWCL6B1PROD with NOTICES
80074 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 

Department’s preliminary 

interpretations in this Request for 

Information. All comments will be made 

publicly available. 

DATES: Comments must be received on 

or before February 22, 2011. 

ADDRESSES: You may submit comments 

identified by RIN 1235–ZA00 by either 

of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Please follow the 

instructions for submitting comments. 

Mail: Comments may be mailed to 

Montaniel Navarro, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room S–3502, Washington, DC 20210. 

Please submit only one copy of your 

comments by only one method. All 

submissions must include the agency 

name and Regulatory Information 

Number (RIN) identified above for this 

request for information. All comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

FOR FURTHER INFORMATION CONTACT: 

Montaniel Navarro, FLSA Branch Chief, 

Wage and Hour Division, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room S–3502, 

Washington, DC 20210, (202) 693–0051. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Patient Protection and Affordable 

Care Act (the ‘‘Affordable Care Act’’) 

amended section 7 of the Fair Labor 

Standards Act (‘‘FLSA’’), 29 U.S.C. 207, 

to require employers to provide nursing 

mothers reasonable break time and a 

place to express breast milk. Public Law 

111–148, 124 Stat. 119, section 4207. 

The new requirement became effective 

when the President signed the 

Affordable Care Act on March 23, 2010. 

The specific requirements of the new 

provision are described below. 

Break Time 

Employers are required to provide 

‘‘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.’’ 29 U.S.C. 

207(r)(1)(A). The law states that ‘‘[a]n 

employer shall not be required to 

compensate an employee receiving 

reasonable break time [for expressing 

breast milk] for any work time spent for 

such purpose.’’ 29 U.S.C. 207(r)(2). 

Space 

The law further requires employers 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.’’ 29 

U.S.C. 207(r)(1)(B). 

Undue Hardship Exemption for 

Employers With Fewer Than 50 

Employees 

Under the law, ‘‘[a]n 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.’’ 29 U.S.C. 

207(r)(3). 

Relationship to State Laws 

The Federal law does not preempt ‘‘a 

State law that provides greater 

protections to employees than the 

protections provided for under [the 

Federal law].’’ 29 U.S.C. 207(r)(4). 

Coverage Under the FLSA Nursing 

Mothers Provision 

As mentioned above, the Affordable 

Care Act’s break time for nursing 

mothers provision is now part of the 

FLSA. The FLSA is the Federal law that 

sets minimum wage, overtime, 

recordkeeping, and youth employment 

standards. The break time for nursing 

mothers provision was added to section 

7 of the FLSA, which sets forth 

premium payment obligations for 

overtime. The FLSA and the break time 

for nursing mothers provision apply 

only to certain employees. First, in 

order for an employee to be covered by 

the FLSA, there must be ‘‘enterprise 

coverage’’ or ‘‘individual coverage.’’ 

Enterprise Coverage 

Employees who work for certain 

businesses or organizations 

(‘‘enterprises’’) are covered by the FLSA. 

These enterprises, which must have at 

least two employees, are: 

(1) Those that have an annual dollar 

volume of sales or business done of at 

least $500,000; or 

(2) hospitals, businesses providing 

medical or nursing care for residents, 

schools and preschools, and government 

agencies. 29 U.S.C. 203(s)(1). 

Individual Coverage 

Even when there is no enterprise 

coverage, employees are covered by the 

FLSA if their work regularly involves 

them in commerce between states 

(‘‘interstate commerce’’). The FLSA 

covers individual workers who are 

‘‘engaged in commerce or in the 

production of goods for commerce.’’ 29 

U.S.C. 206(a), 207(a). Examples of 

employees who are involved in 

interstate commerce include those who: 

produce goods that will be sent out of 

state (such as a worker assembling 

components in a factory or a secretary 

typing letters in an office), regularly 

make telephone calls to persons located 

in other states, handle records of 

interstate transactions, travel to other 

states on their jobs, and do janitorial 

work in buildings where goods are 

produced for shipment outside the state. 

Also, domestic service workers such as 

housekeepers, full-time babysitters, and 

cooks are typically covered by the 

FLSA. 29 U.S.C. 202(a). 

Coverage for Nonexempt Employees 

Even if an employee is covered under 

the FLSA, that employee would only be 

entitled to break time to express breast 

milk if she is not exempt from section 

7 of the FLSA, which sets forth the Act’s 

overtime pay requirements. Unless 

specifically exempted, the FLSA 

requires payment of overtime to covered 

employees for hours worked in excess of 

40 hours per workweek at a rate not less 

than time and one-half of their regular 

rates of pay. Because the Affordable 

Care Act amended section 7 of the 

FLSA, the break time for nursing 

mothers provision does not apply to 

employees who are exempt from the 

provisions of section 7. While 

employers are not required under the 

FLSA to provide breaks to nursing 

mothers who are exempt from the 

requirements of section 7, they may be 

obligated to provide such breaks under 

state laws. The Department encourages 

employers to provide break time for all 

nursing mothers including those who 

may not be covered under the FLSA or 

who are exempt from section 7. 

II. Key Issues on Which Public 

Comment Is Requested 

In this document, the Department 

shares its preliminary interpretations of 

the law, and seeks public comment on 

any and all issues concerning the 

reasonable break time for nursing 

mothers law. The Department 

specifically seeks comment on certain 

issues and preliminary interpretations, 

as noted below. 

a. Unpaid Break Time 

Employers are not required to 

compensate nursing mothers for breaks 

taken for the purpose of expressing 

milk. 29 U.S.C. 207(r)(2). The FLSA 

does not require an employer to provide 

its employees with rest periods or 

breaks. However, if the employer 

permits short breaks, usually 20 minutes 

or less, the time must be counted as 

hours worked when determining if the 

FLSA requirements for payment of 


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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 80075 

1See ‘‘The Business Case for Breastfeeding: Steps 

for Creating a Breastfeeding Friendly Worksite’’, 

U.S. Department of Health and Human Services, 

Health Resources and Services Administration 

(2008), available at http://www.womenshealth.gov/ 

breastfeeding/government-programs/business-casefor-breastfeeding/index.cfm. 

minimum wage and/or overtime have 

been satisfied. See 29 CFR 785.18. 

Where an employer already provides 

paid breaks, an employee who uses that 

break time to express milk must be paid 

in the same way that other employees 

are compensated for break time. 

Additional time used beyond the 

authorized paid break time could be 

uncompensated. For example, if an 

employer provides a 20 minute paid 

break and a nursing employee uses that 

time to express milk and takes a total of 

25 minutes for this purpose, the five 

minutes in excess of the paid break time 

does not have to be compensated. The 

FLSA’s general requirement that the 

employee must be completely relieved 

from duty applies; if a nursing employee 

is not completely relieved from duty 

during a break to express breast milk, 

the time must be compensated as work 

time. See WHD Fact Sheet #22, Hours 

Worked Under the FLSA at http:// 

www.dol.gov/whd/regs/compliance/ 

whdfs22.htm. 

Although the FLSA does not require 

employers to allow employees to extend 

their workday (i.e., begin work earlier or 

end work later) to make up for unpaid 

break time used for expressing milk, the 

Department encourages employers to 

provide flexible scheduling for those 

employees who choose to make up for 

any unpaid break time. 

b. Reasonable Break Time 

Employers must provide ‘‘a reasonable 

break time’’ for nursing mothers to 

express breast milk ‘‘each time such 

employee has need to express the milk.’’ 

29 U.S.C. 207(r)(1)(A). In implementing 

the requirements of this provision, 

employers should consider both the 

frequency and number of breaks a 

nursing mother might need and the 

length of time she will need to express 

breast milk. The information provided 

below is intended to help employers in 

this assessment so that they can develop 

policies that meet the requirements of 

the law and make sense for their work 

environment. 

The Department has consulted with 

public health officials from the U.S. 

Department of Health and Human 

Services, including the Centers for 

Disease Control and Prevention (CDC) 

and the Health Resources and Services 

Administration, in order to better 

understand a nursing mother’s 

physiological needs and to inform our 

initial determinations regarding the 

frequency and timing of breaks to 

express breast milk. The information 

that follows stems from the guidance 

provided by the lactation experts at 

these public health agencies.1 The 

frequency of breaks needed to express 

breast milk varies depending on factors 

such as the age of the baby, the number 

of breast feedings in the baby’s normal 

daily schedule, whether the baby is 

eating solid food, and other factors. In 

the early months of life a baby may need 

as many as 8 to 12 feedings per day. 

This means that a nursing baby needs 

food every two to three hours. A nursing 

mother produces milk on a constant 

basis. If the baby does not take the milk 

directly from the mother, it must be 

removed by a pump about as frequently 

as the baby usually nurses. If a mother 

is unable to express breast milk while 

she is away from her baby, she may 

experience a drop in her milk supply 

which could result in her being unable 

to continue nursing her child. The 

inability to express milk may also lead 

to an infection. Depending on the 

nursing mother’s work schedule, it may 

be that the frequency of breaks needed 

tracks regular breaks and lunch periods, 

but this will not always be the case. As 

the child grows and begins to consume 

solid foods, typically around six months 

of age, the frequency of nursing often 

decreases, and the need for a nursing 

mother to take breaks to express breast 

milk may also gradually diminish. 

The Department expects that nursing 

mothers typically will need breaks to 

express milk two to three times during 

an eight hour shift. Longer shifts will 

require additional breaks to express 

milk. 

The length of time necessary to 

express milk also varies from woman to 

woman. The act of expressing breast 

milk alone typically takes about 15 to 20 

minutes, but there are many other 

factors that will determine a reasonable 

break time. Employers should consider 

these factors when determining how 

they will provide both reasonable break 

time and space for nursing mothers. For 

example, factors such as the location of 

the space and the amenities nearby (e.g., 

proximity to employee’s work area, 

availability of sink for washing, location 

of refrigerator or personal storage for the 

milk, etc.) can affect the length of break 

an employee will need to express milk. 

Some of the factors employers should 

consider in determining whether the 

time needed for a nursing employee to 

express milk is ‘‘reasonable’’ include: 

(i) The time it takes to walk to and 

from the lactation space and the wait, if 

any, to use the space; 

(ii) Whether the employee has to 

retrieve her pump and other supplies 

from another location; 

(iii) Whether the employee will need 

to unpack and set up her own pump or 

if a pump is provided for her; 

(iv) The efficiency of the pump used 

to express milk (employees using 

different pumps may require more or 

less time); 

(v) Whether there is a sink and 

running water nearby for the employee 

to use to wash her hands before 

pumping and to clean the pump 

attachments when she is done 

expressing milk, or what additional 

steps she will need to take to maintain 

the cleanliness of the pump 

attachments; 

(vi) The time it takes for the employee 

to store her milk either in a refrigerator 

or personal cooler. 

Nursing employees are encouraged to 

discuss with their employers what they 

expect they will need in terms of 

frequency and timing of breaks to 

express milk. Employers are encouraged 

to discuss with nursing employees the 

location and availability of space for 

expressing milk as that will affect the 

time required for the breaks. These 

discussions will help employers and 

employees to develop shared 

expectations and an understanding of 

what will constitute ‘‘a reasonable break 

time’’ and how to incorporate the breaks 

into the work period. 

In assessing the reasonableness of 

break time provided to a nursing 

employee, the Department will consider 

all the steps reasonably necessary to 

express breast milk, not merely the time 

required to express the milk itself. 

c. Space for Expressing Breast Milk 

The break time for nursing mothers 

provision requires that covered 

employers 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.’’ 29 

U.S.C. 207(r)(1)(B). The Department’s 

initial interpretation of the requirement 

that the space be ‘‘shielded from view 

and free from intrusion’’ is that it 

requires employers where practicable to 

make a room (either private or with 

partitions for use by multiple nursing 

employees) available for use by 

employees taking breaks to express 

milk. Where it is not practicable for an 

employer to provide a room, the 

requirement can be met by creating a 

space with partitions or curtains. Any 

windows in the designated room or 


srobinson on DSKHWCL6B1PROD with NOTICES
80076 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 

2The CDC Web site contains recommended 

guidelines for the safe preparation and storage of 

expressed breast milk. See http://www.cdc.gov/ 

breastfeeding/recommendations/ 

handling_breastmilk.htm. 

space should be covered to ensure the 

space is ‘‘shielded from view.’’ With any 

space provided for expressing milk, the 

employer must ensure the employee’s 

privacy through means such as signs 

that designate when the space is in use, 

or a lock on the door. 

The employer is not obligated to 

maintain a permanent, dedicated space 

for nursing mothers. A space 

temporarily created or converted into a 

space for expressing milk or made 

available when needed by a nursing 

mother is sufficient provided that the 

space is shielded from view, and free 

from intrusion from coworkers and the 

public. 

While a bathroom, even if it offers 

privacy, does not meet the requirements 

of the statute, an anteroom or lounge 

area connected to the bathroom may be 

sufficient to meet the requirements of 

the law. For example, if there is a wall 

with a door separating the lounge area 

from the bathroom, and if there is a 

space for nursing mothers within the 

lounge that is ‘‘shielded from view’’ and 

‘‘free from intrusion,’’ this would likely 

meet the requirements of the law. The 

Department would appreciate comments 

on whether and under what 

circumstances rooms that adjoin 

bathrooms could be compliant with the 

law. 

Locker rooms that function as 

changing rooms (i.e., for changing in 

and out of uniforms) may also be 

adequate as long as there is a separate 

space designated within the room for 

expressing milk that is shielded from 

view and free from intrusion. The 

Department does not believe, however, 

that a locker room where there is not 

sufficient differentiation between the 

toilet area and the space reserved for 

expressing breast milk would meet the 

requirements of the law because it 

presents similar health and sanitation 

concerns as a bathroom. There is 

concern that locker rooms may not be 

appropriate because such wet 

environments are at risk of being 

contaminated with pathogenic bacteria 

and have been linked to outbreaks of 

methicillin-resistant Staphylococcus 

aureus (MRSA). The Department would 

appreciate comments on whether and 

under what circumstances locker rooms 

could be compliant with the law. 

Because the statute requires 

employers to provide break time ‘‘each 

time such employee has need to express 

the milk,’’ employers should consider 

the number of nursing mothers 

employed and their work schedules to 

determine the location and number of 

spaces to designate or create. As 

described above, the amount of time 

that is reasonable for a nursing 

employee to express milk is dependent 

in part on her ability to access a suitable 

space. In order to accommodate 

significant numbers of nursing mothers, 

some large employers may choose to 

include nursing mothers’ rooms in their 

floor plans and provide a room on 

multiple floors of their facility or in an 

on-site health facility. Other employers 

may provide a large room with privacy 

screens so that the room may be used 

simultaneously by several nursing 

employees. Where the designated space 

is so far from the employee’s work area 

as to make it impractical for the 

employee to take breaks to express milk, 

or where the number of nursing 

employees needing to use the space 

either prevents an employee from taking 

breaks to express milk or necessitates 

prolonged waiting time, the Department 

will not consider the employer to be in 

compliance with the requirement to 

provide reasonable break time. 

In order to be a functional space ‘‘that 

may be used by an employee to express 

breast milk,’’ at a minimum, a space 

must contain a place for the nursing 

mother to sit, and a flat surface, other 

than the floor, on which to place the 

pump. Ideally, the space will have 

access to electricity, so that a nursing 

mother can plug in an electric pump 

rather than use a pump with battery 

power. There are a range of additional 

features that some employers have 

included when providing spaces for 

their employees to use to express breast 

milk, such as sinks within or nearby the 

room for washing hands and cleaning 

pump attachments, and refrigerators 

within or nearby the room for storing 

expressed milk. While such additional 

features are not required, the 

Department notes that their provision 

may decrease the amount of break time 

needed by nursing employees to express 

milk. 

The Department interprets an 

employee’s right to express milk for a 

nursing child to include the ability to 

safely store the milk for her child.2

While employers are not required to 

provide refrigeration options for nursing 

mothers for the purpose of storing 

expressed milk, they must allow a 

nursing mother to bring a pump and 

insulated food container to work for 

expressing and storing the milk and 

ensure there is a place where she can 

store the pump and insulated food 

container while she is at work. This is 

similar to providing employees with a 

place to store lunch or meals that they 

bring to work in insulated food 

containers. In many workplaces the 

nursing mother will be able to keep the 

pump and insulated container near her 

work space, but in some settings it may 

be necessary to have a separate place for 

her to stow the pump and insulated 

food container (e.g., a locker, closet, 

cabinet, or other space where the pump 

and container will not be disturbed or 

contaminated). 

The Department is aware that there 

are many work settings that are not in 

office buildings, and that this can pose 

unique challenges to providing an 

adequate space for nursing mothers to 

express milk. For example, there are 

nursing employees who work in retail 

settings, quick service food stores and 

restaurants, construction or outdoor 

work sites, factories, or in other nonoffice building settings. Some of these 

workplaces may have limited space 

available to convert into a designated 

space to express breast milk. In order to 

meet the obligations of the law, 

employers need not create a permanent, 

dedicated space for expressing milk. 

The Department is aware that many 

such employers have found ways to 

provide break time and space for 

nursing employees even though there 

was no readily available ‘‘unused’’ 

space. For example, in restaurants and 

small retail settings, employers have 

made spaces normally designated for 

other purposes available when needed 

by the nursing mother. Malls or retail 

shopping centers have designated 

shared space to be used by employees 

of the various tenant businesses. The 

Department would appreciate comments 

that address the conditions under which 

spaces such as manager’s offices, storage 

spaces, utility closets, and other such 

spaces normally used for other purposes 

could be considered adequate spaces for 

use by nursing mothers under the 

statute. In addition, the Department 

solicits comments on the kinds of 

shared space arrangements that would 

be acceptable under the law. 

Similarly, the Department would 

appreciate comments that address how 

employers can provide adequate break 

time and space for nursing employees 

who are not in a fixed place during a 

work shift (e.g., bus drivers, mail or 

parcel delivery workers, law 

enforcement officers, emergency 

medical technicians, etc.). In general, 

the Department would appreciate 

comments that describe creative 

solutions to providing break time and 

space for nursing mothers so that we 

can share these examples more broadly. 

Employers have also asked the 

Department what their obligation is to 

provide a space when their nursing 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 80077 

employee is located at a client’s 

worksite, rather than the employer’s 

worksite. It is the Department’s view 

that the statutory language makes it the 

obligation of the employer to provide 

the space, regardless of where the 

employee is located. In situations where 

the employee is off-site, the Department 

recommends that the employer arrange 

with the client to allow the employee to 

use a space at the client’s site for the 

purpose of expressing milk. It may be 

that the client’s worksite already has a 

designated space for expressing milk for 

its own employees that can be used by 

the contract employee. Where a joint 

employment relationship exists between 

the employer and client in relation to 

the nursing employee, both parties 

would be viewed as having the 

obligation to provide reasonable break 

time and an appropriate space in which 

to express milk. The Department would 

appreciate comments and 

recommendations as to how employers 

can meet their obligations under the law 

to provide break time and space for 

nursing mother employees who are 

working at other sites. 

d. Notice 

In order to facilitate an employer’s 

ability to provide appropriate space for 

expressing milk, the Department 

encourages nursing employees to give 

employers advance notice of their intent 

to take breaks at work to express milk. 

The Department believes that a simple 

conversation between an employee and 

a supervisor, manager, or human 

resources representative about the 

employee’s intent to take breaks for the 

purpose of expressing breast milk would 

facilitate an employer’s ability to make 

arrangements to comply with the law 

before the nursing mother returns to 

work. The Department solicits 

comments about how best to address 

notice issues consistent with the 

language and purpose of the law, 

bearing in mind that the employer must 

provide the break time and lactation 

space ‘‘each time such employee has 

need to express the milk.’’ 29 U.S.C. 

207(r)(1)(A). 

The Department notes that an 

employer may ask an expectant mother 

if she intends to take breaks to express 

milk while at work. Doing so informs 

employees of their rights under the law 

and allows the employer the 

opportunity to make any necessary 

adjustments to comply with the law. 

e. Undue Hardship Exemption 

The break time for nursing mothers 

statutory provision provides an undue 

hardship exemption that is only 

available for employers with fewer than 

50 employees that meet certain 

conditions, as further described below. 

Employers with 50 or more employees 

must comply with the law without 

exception. 29 U.S.C. 207(r)(3). Unlike 

the Family Medical Leave Act, in which 

Congress specifically excluded from 

coverage worksites where an employer 

employs less than 50 employees or 

where the total number of employees 

employed by that employer within 75 

miles of a particular worksite is less 

than 50 employees, Congress did not 

provide such specifications for 

determining the application of the break 

time for nursing mothers provision to 

small employers or worksites with few 

employees. The statutory language of 

section 7(r)(3) sets forth the number of 

employees without further 

specifications such as the number of 

employees per worksite, or in a 

geographic area, for example. Therefore, 

the Department has concluded that 

covered employers must count all 

employees who work for the employer, 

including all work sites, when 

determining whether this exemption 

might apply. 

Because the nursing mothers break 

time requirements were added to the 

FLSA, the Department will apply the 

FLSA definition of ‘‘employee’’ in 

section 3(e)(1) when counting 

employees. Thus, ‘‘any individual 

employed by an employer’’ must be 

counted, including full-time employees, 

part-time employees, and any other 

individuals who meet the FLSA 

definition of an employee. 

In addition, the Department intends to 

use the FLSA workweek standard for 

purposes of counting whether the 

employer has fewer than 50 employees. 

See 29 CFR 778.105. The Department 

recognizes that some employers’ 

workforces fluctuate from week to week, 

and that some businesses experience 

variation in workforce size over the 

course of time, for myriad reasons. 

However, the Department believes it is 

necessary to fix the workweek at which 

the number of employees are counted 

for purposes of the undue hardship 

exemption because a nursing mother 

necessarily relies on the availability of 

the breaks, and fluctuation in the ability 

to express breast milk at work may 

cause the woman to lose the ability to 

produce sufficient milk for her child, 

frustrating the purpose of the law. The 

Department solicits comments as to the 

appropriate point at which to count the 

number of employees for purposes of 

determining whether the employer may 

assert an undue hardship defense. The 

Department is considering whether the 

number of employees should be counted 

in the workweek in which the employee 

notifies the employer that she intends to 

take breaks to express milk, in the first 

workweek the employee intends to 

utilize the breaks and the space to 

express milk at work, or at some other 

point. Further, the Department believes 

that an employer that has previously 

claimed the undue hardship exemption 

will no longer be eligible for the 

exemption if the number of employees 

employed by the employer rises to 50 or 

more at the point determined above. 

The Department solicits comments on 

this interpretation as well. 

The employer bears the burden of 

proof that compliance with the nursing 

mothers break time provision would be 

an undue hardship. In addition to 

demonstrating that the employer 

employs fewer than 50 employees, an 

employer that wishes to avail itself of 

the exemption must show that 

compliance would cause the employer 

‘‘significant difficulty or expense when 

considered in relation to the size, 

financial resources, nature, or structure 

of the employer’s business.’’ 29 U.S.C. 

207(r)(3). Because these factors and the 

number of employees employed by a 

particular employer will vary depending 

on the circumstances at the time the 

request for break time is made, the 

Department will not grant prospective 

undue hardship exemptions to 

employers. The undue hardship 

exemption will operate as an affirmative 

defense raised by an employer that 

seeks to demonstrate to the Department 

why it is unable to accommodate a 

particular nursing employee under the 

law. For example, if the Department 

were investigating a complaint made by 

a nursing mother who claims her 

employer is not complying with the law, 

the employer would have an 

opportunity at that time to demonstrate 

to the Department why it qualifies in 

that instance for an undue hardship 

exemption based on the statutory 

factors. 

Because the law only requires space 

and time for unpaid breaks for one year 

after a child’s birth, and the employer 

must be able to demonstrate 

‘‘significant’’ difficulty or expense, the 

Department believes that this is a 

stringent standard that will result in 

employers being able to avail 

themselves of the exemption only in 

limited circumstances. Employers with 

fewer than 50 employees may not 

presume that having a smaller 

workforce by itself sufficiently 

demonstrates that compliance would 

pose a significant difficulty or expense; 

the difficulty or expense must be shown 

in light of the factors listed in the 

statute. The Department expects and 

encourages such small employers to 


srobinson on DSKHWCL6B1PROD with NOTICES
80078 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 

3The Equal Employment Opportunity 

Commission (EEOC) should be consulted for further 

information about Title VII. See http:// 

www.eeoc.gov. 

approach compliance creatively and 

constructively, and will evaluate each 

undue hardship claim by applying the 

statutory factors to the particular factual 

circumstances of a case. The 

Department solicits comments on 

whether this undue hardship standard, 

which is very similar to the undue 

hardship standard in the Americans 

With Disabilities Act, 42 U.S.C. 

12111(10) (‘‘significant difficulty or 

expense’’ when considered in light of 

factors such as financial resources, size, 

type of operation and workforce 

structure), should be interpreted in the 

same way the undue hardship defense 

has been interpreted under that law. 

f. Relationship to the Family Medical 

Leave Act 

The Department has received several 

inquiries concerning the relationship of 

the nursing mothers break time 

provision to the Family Medical Leave 

Act (‘‘FMLA’’). The FMLA entitles 

eligible employees of covered employers 

to take unpaid, job-protected leave for 

specified family and medical reasons. 

See 29 U.S.C. 2601 et seq. Among the 

qualifying reasons for taking FMLA 

leave are to care for a newborn child 

within one year of birth and for the 

employee’s own serious health 

condition that makes the employee 

unable to perform the essential 

functions of his or her job. FMLA 

protections do not extend to leave taken 

for reasons not covered by the Act. See 

WHD Fact Sheet # 28 The Family and 

Medical Leave Act of 1993 at http:// 

www.dol.gov/whd/regs/compliance/ 

whdfs28.pdf. 

The Department does not believe that 

breaks to express breast milk can 

properly be considered to be 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 

Department does not consider 

expressing milk at work to constitute 

bonding with or caring for a newborn 

child. See 29 CFR 825.120. Also, while 

an eligible employee may take FMLA 

leave due to her own serious health 

condition, the Department does not 

believe that expressing milk will 

typically be associated with a serious 

health condition under the FMLA. See 

29 CFR 825.113–115. 

g. Enforcement 

The Department’s Wage and Hour 

Division (WHD) is charged with 

administering and enforcing the FLSA, 

which includes the new break time for 

nursing mothers provision. The 

enforcement of the FLSA is carried out 

by WHD investigators. As the WHD’s 

authorized representatives, they 

conduct investigations and gather data 

on wages, hours, and other employment 

conditions or practices, in order to 

determine compliance with the law. 29 

U.S.C. 211. Where violations are found, 

they also may recommend changes in 

employment practices to bring an 

employer into compliance. 

If an employee would like to file a 

complaint because she believes her 

employer has violated the break time for 

nursing mothers requirement under the 

FLSA, she should call the toll-free WHD 

number 1–866–487–9243 and she will 

be directed to the nearest WHD office 

for assistance. The WHD Web site at 

http://www.dol.gov/wecanhelp/ 

howtofilecomplaint.htm provides basic 

information about how to file a 

complaint and how the WHD will 

investigate complaints. 

To the extent possible, WHD intends 

to give priority consideration to 

complaints received by the agency 

alleging that an employer is failing to 

provide break time and a space to 

express milk as required by law to allow 

expeditious resolution of the matter in 

order to preserve the employee’s ability 

to continue to breastfeed and express 

milk for her child. 

Section 7(r) of the FLSA does not 

specify any penalties if an employer is 

found to have violated the break time 

for nursing mothers requirement. In 

most instances, an employee may only 

bring an action for unpaid minimum 

wages or unpaid overtime compensation 

and an additional equal amount in 

liquidated damages. 29 U.S.C. 216(b). 

Because employers are not required to 

compensate employees for break time to 

express breast milk, in most 

circumstances there will not be any 

unpaid minimum wage or overtime 

compensation associated with the 

failure to provide such breaks. 

If an employer refuses to comply with 

the requirements of section 7(r), 

however, the Department may seek 

injunctive relief in federal district court, 

and may obtain reinstatement and lost 

wages for the employee. 29 U.S.C. 217. 

For example, if an employer terminates 

a nursing mother employee because she 

takes breaks to express milk that she is 

entitled to under the FLSA, or because 

she has informed her employer that she 

intends to take breaks to express breast 

milk, this would be considered a 

violation of 29 U.S.C. 15(a)(2) (i.e., an 

unlawful violation of section 7(r)). In 

such a case, the Department could 

pursue injunctive relief in federal 

district court and seek reinstatement 

and lost wages for the employee. 

Additionally, if an employee is 

‘‘discharged or in any other manner 

discriminated against’’ because she has 

filed a complaint or caused to be 

instituted any proceeding regarding 

break time for expressing breast milk, 

the employee may file a retaliation 

complaint with the Department or she 

may file a private cause of action 

seeking reinstatement, lost wages, and 

other appropriate remedies. 29 U.S.C. 

215(a)(3), 216(b). 

If an employer treats employees who 

take breaks to express breast milk 

differently than employees who take 

breaks for other personal reasons, the 

nursing employee may have a claim for 

disparate treatment under Title VII of 

the Civil Rights Act of 1964.3

h. Compliance Assistance 

The Department is determining how 

best to provide assistance to employees 

as well as to employers seeking to 

comply with the new break time for 

nursing mothers requirement. The 

Department has established a website 

that provides a compilation of resources 

that employers, employees, lactation 

consultants, and other interested 

stakeholders might find useful as they 

seek to develop workplace lactation 

programs. See http://www.dol.gov/whd/ 

nursingmothers. We are interested 

generally in hearing from the public 

about the kinds of information and 

resources that would be most helpful to 

employers and employees as they seek 

to comply with the requirements of the 

law and to exercise the break time right 

provided under the law. 

i. Additional Resources 

Employers and employees are 

encouraged to review information 

issued by the Department of Health and 

Human Services (HHS) concerning 

workplace lactation programs. The 

Health Resources and Services 

Administration within HHS has 

published a resource kit, The Business 

Case for Breastfeeding, which includes 

materials for management, human 

resource managers, and others involved 

in implementing on-site programs for 

lactation support and may be accessed 

at http://www.womenshealth.gov/ 

breastfeeding/government-programs/ 

business-case-for-breastfeeding/ 

index.cfm. The Centers for Disease 

Control and Prevention within HHS has 

a Healthier Worksite Initiative that 

offers a toolkit to help employers 

establish a comprehensive lactation 

support program for nursing mothers at 

the worksite. The toolkit is available at 

http://www.cdc.gov/nccdphp/dnpao/ 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Notices 80079 

hwi/toolkits/lactation/index.htm. 

Several non-profit organizations and 

state breastfeeding coalitions also 

provide resources to help employers 

develop lactation policies and programs. 

In addition, employers may wish to 

review the Equal Employment 

Opportunity Commission’s 

‘‘Enforcement Guidance: Unlawful 

Disparate Treatment of Workers with 

Caregiving Responsibilities’’ which is 

available at http://www.eeoc.gov/policy/ 

docs/caregiving.html. 

III. Electronic Access 

An electronic version of this Request 

for Information is available on the 

Internet at http://www.regulations.gov 

and http://www.dol.gov/whd/ 

nursingmothers. 

Nancy J. Leppink, 

Deputy Administrator, Wage and Hour 

Division. 

[FR Doc. 2010–31959 Filed 12–20–10; 8:45 am] 

BILLING CODE 4510–27–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice: (10–162)] 

Notice of Information Collection 

AGENCY: National Aeronautics and 

Space Administration (NASA). 

ACTION: Notice of information collection. 

SUMMARY: The National Aeronautics and 

Space Administration, as part of its 

continuing effort to reduce paperwork 

and respondent burden, invites the 

general public and other Federal 

agencies to take this opportunity to 

comment on proposed and/or 

continuing information collections, as 

required by the Paperwork Reduction 

Act of 1995 (Pub. L. 104–13, 44 U.S.C. 

3506(c)(2)(A)). 

DATES: All comments should be 

submitted within 30 calendar days from 

the date of this publication. 

ADDRESSES: All comments should be 

addressed to Lori Parker, National 

Aeronautics and Space Administration, 

Washington, DC 20546–0001. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the information collection 

instrument(s) and instructions should 

be directed to Lori Parker, NASA PRA 

Officer, NASA Headquarters, 300 E 

Street, SW., JF000, Washington, DC 

20546, (202) 358–1351, 

Lori.Parker@nasa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Abstract 

NASA is requesting a Generic 

Clearance for data collection to integrate 

program planning, program 

accountability, management, and 

monitoring information pertaining to 

the NASA’s education and outreach 

efforts. NASA’s education and outreach 

portfolio includes efforts that span 

various organizational units within 

NASA. 

II. Method of Collection 

Electronic. 

III. Data 

Title: NASA Education Generic 

Clearance. 

OMB Number: 2700–xxxx. 

Type of review: Regular. 

Affected Public: Business or other forprofit; not-for-profit institutions; 

individuals or households. 

Number of Respondents: 2,236,000. 

Responses per Respondent: 1. 

Annual Responses: 2,444,000. 

Hours per Request: 0.15–.5 hour. 

Annual Burden Hours: 245,333. 

Frequency of Report: On occasion, 

quarterly, semi-annually, annually. 

IV. Request for Comments 

Comments are invited on: (1) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of NASA, including 

whether the information collected has 

practical utility; (2) the accuracy of 

NASA’s estimate of the burden 

(including hours and cost) of the 

proposed collection of information; (3) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on respondents, including automated 

collection techniques or the use of other 

forms of information technology. 

Comments submitted in response to 

this notice will be summarized and 

included in the request for OMB 

approval of this information collection. 

They will also become a matter of 

public record. 

Lori Parker, 

NASA PRA Clearance Officer. 

[FR Doc. 2010–31955 Filed 12–20–10; 8:45 am] 

BILLING CODE 7510–13–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice: (10–165)] 

Notice of Information Collection 

AGENCY: National Aeronautics and 

Space Administration (NASA). 

ACTION: Notice of information collection. 

SUMMARY: The National Aeronautics and 

Space Administration, as part of its 

continuing effort to reduce paperwork 

and respondent burden, invites the 

general public and other Federal 

agencies to take this opportunity to 

comment on proposed and/or 

continuing information collections, as 

required by the Paperwork Reduction 

Act of 1995 (Pub. L. 104–13, 44 U.S.C. 

3506(c)(2)(A)). 

DATES: All comments should be 

submitted within 30 calendar days from 

the date of this publication. 

ADDRESSES: All comments should be 

addressed to Lori Parker, National 

Aeronautics and Space Administration, 

Washington, DC 20546–0001. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the information collection 

instrument(s) and instructions should 

be directed to Lori Parker, NASA PRA 

Officer, NASA Headquarters, 300 E 

Street, SW., JF0000, Washington, DC 

20546, (202) 358–1351, 

Lori.Parker@nasa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Abstract 

As required in Section 305(b) of the 

National Aeronautics and Space Act of 

1958 and the NASA Supplement to the 

Federal Acquisition Regulation, NASA 

R&D contracts require contractor/ 

recipient reporting of new technologies 

to NASA using NASA eNTRe system for 

electronic submissions and NASA Form 

1679 for paper submissions. 

II. Method of Collection 

NASA will utilize a web-base on-line 

form to collect this information. 

Approximately 65 per cent of the 

responses will be collected 

electronically. 

III. Data 

Title: AST–Technology Utilization. 

OMB Number: 2700–0009. 

Type of review: Regular. 

Affected Public: Business or other forprofit and not-for profit institutions. 

Estimated Number of Respondents: 

1283. 

Estimated Time per Response: 1 hour 

for manual responses and 0.75 hour for 

electronic responses. 

Estimated Total Annual Burden 

Hours: 1075. 

Estimated Total Annual Cost: $0. 

IV. Request for Comments 

Comments are invited on: (1) Whether 

the proposed collection of information 

is necessary for the proper performance 


srobinson on DSKHWCL6B1PROD with NOTICES