Lactation Breaks at Work

Two laws deal with break time for nursing parents in Texas.

The Patient Protection and Affordable Care Act (“ACA”) applies to many employees throughout the country.

Chapter 619 of the Texas Government Code applies to some employees in Texas. 

The ACA requires employers to let “non-exempt” employees take breaks to express breast milk. The federal law that deals with overtime pay can help you figure out if you are exempt. If your job pays you overtime when you work more than forty hours a week, you are a non-exempt employee. An employment attorney can tell you more about your rights if you are unsure. 

Employers with 50 or more employees must provide break time under the ACA. An employer with fewer than 50 employees might not have to provide break time if it can show that this would create “undue hardship” for them. 

Chapter 619 only applies to “public employers” in Texas. This includes: 

• City and county governments; 

• State agencies; 

• Public school districts; 

• Public colleges and universities; 

• Courts; and 

• The Texas Legislature. 

Employees of public employers in Texas have the right to break time, even if they are exempt under the ACA. 

The ACA and Chapter 619 require employers to provide “reasonable” break time. The ACA requires this for one year after a child’s birth. Chapter 619 does not set an endpoint like this. 

The laws do not require a specific amount of time for a break. They also do not specify how many breaks an employee may take. They both say employees may take breaks as often as they need to express milk. 

The exact length of time that someone might need will depend on factors like the baby’s age or the location of the break area. The U.S. Department of Labor has stated that a typical nursing employee might need two to three breaks in a workday, with each lasting 15 to 20 minutes. 

Both laws require employers to provide a private location for employees to express breast milk. The ACA states explicitly that this cannot be a bathroom. Chapter 619 only says it cannot be a “multiple-user bathroom.” The location must shield nursing employees from other people’s views. It must be “free from intrusion” by others, such as by having a door that locks. 

Breast milk needs refrigeration so it will not spoil. Neither law requires employers to provide a refrigerator where employees can store milk. 

The ACA states that employers do not have to pay employees for their time on break to express milk. However, if an employee uses break time that is normally paid time, the employer must pay her for that time. For example, many employers allow employees to take one or two paid 15-minute breaks during a shift. Employees who use those 15-minute breaks to express milk should get paid for that time. If she takes extra breaks or goes over 15 minutes, that time might not be paid. 

The ACA’s provisions on break time for nursing mothers are part of the federal law on overtime pay. That law allows employees to file complaints against their employers if they do not pay them everything they have earned. Employees can also file complaints if their employer denies them their break time. They may be able to recover damages from their employer. 

Employers may not discriminate against an employee for using their break time. This includes any adverse action, such as firing, suspending, or demoting them. An employee can file a complaint and recover damages under the ACA.