U.S. Department of Labor 

Wage and Hour Division 

 (August 2013)

Fact Sheet #73: Break Time for Nursing Mothers under the 

FLSA 

This fact sheet provides general information on the break time requirement for nursing mothers in the 

Patient Protection and Affordable Care Act (“PPACA”), which took effect when the PPACA was signed 

into law on March 23, 2010 (P.L. 111-148). This law amended Section 7 of the Fair Labor Standards 

Act (FLSA). 

General Requirements 

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.” 

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 FLSA requirement of break time for nursing mothers to express breast milk does not preempt State 

laws that provide greater protections to employees (for example, providing compensated break time, 

providing break time for exempt employees, or providing break time beyond 1 year after the child’s 

birth). 

Time and Location of Breaks 

Employers are required to provide a reasonable amount of break time to express milk as frequently as 

needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of 

each break will likely vary. 

A bathroom, even if private, is not a permissible location under the Act. The location provided must be 

functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, 

it must be available when needed in order to meet the statutory requirement. A space temporarily created 

or converted into a space for expressing milk or made available when needed by the nursing mother is 

sufficient provided that the space is shielded from view, and free from any intrusion from co-workers 

and the public. 

Coverage and Compensation 

Only employees who are not exempt from section 7, which includes the FLSA’s overtime pay 

requirements, are entitled to breaks to express milk. 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. 

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Employers with fewer than 50 employees are not subject to the FLSA break time requirement if 

compliance with the provision would impose an undue hardship. Whether compliance would be an 

undue hardship is determined by looking at the difficulty or expense of compliance for a specific 

employer in comparison to the size, financial resources, nature, and structure of the employer’s business. 

All employees who work for the covered employer, regardless of work site, are counted when 

determining whether this exemption may apply. 

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the 

purpose of expressing milk. However, where 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. In addition, the FLSA’s general requirement that the 

employee must be completely relieved from duty or else the time must be compensated as work time 

applies. See WHD Fact Sheet #22, Hours Worked under the FLSA. 

FLSA Prohibitions on Retaliation 

Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other 

manner discriminate against any employee because such employee has filed any complaint or instituted 

or caused to be instituted any proceeding under or related to this Act, or has testified or is about to 

testify in any such proceeding, or has served or is about to serve on an industry committee.” 

Employees are protected regardless of whether the complaint is made orally or in writing. Complaints 

made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints 

to an employer are also protected. 

Any employee who is “discharged or in any other manner discriminated against” because, for instance, 

he or she has filed a complaint or cooperated in an investigation, may file a retaliation complaint with 

the Wage and Hour Division or may file a private cause of action seeking appropriate remedies 

including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as 

liquidated damages. 

For additional information, visit our Wage and Hour Division Website: 

http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 

5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). 

This publication is for general information and is not to be considered in the same light as official 

statements of position contained in the regulations. 

U.S. Department of Labor

Frances Perkins Building

200 Constitution Avenue, NW 

Washington, DC 20210

1-866-4-USWAGE

TTY: 1-866-487-9243

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