Earlier this year, my partner blogged about the Department of Labor’s (“DOL”) Field Assistance Bulletin (“FAB”) regarding the enforcement of newly enacted amendments to the Fair Labor Standards Act (“FLSA”). The amendments, known as the “Pump for Nursing Mothers Act”  require employers to provide breastfeeding accommodations to nursing mothers so they may express breast milk while at work during the first year following a child’s birth. The new requirements can be boiled down to three concepts. Employers must (1) provide reasonable break time; (2) make space available; and (3) post notices that inform workers of their rights.

His blog must have been in the back of my mind when I was at a small diner a few weeks ago. What struck me was how much restaurant is packed into such a small space. The seating area is so limited there’s always a line of people waiting to get in. You can barely fit a chef in the kitchen and I have no idea where they store anything.

Setting aside the break time and notice requirements, I wondered how on earth that restaurant could comply with its duty to provide a reasonable, private space for a nursing mother. After all, that locally-owned restaurant (i.e., not a Denny’s) had been that way for decades.

The answer to this question by and large is to just figure it out. To do that, you start with the statute, which states that “[a]n employer shall 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.”

DOL’s FAB provides some useful guidance. See FAB at 4-5. First, employers are not required to permanently create an exclusive space that can’t be used for anything else. Rather, it’s sufficient if the employer temporarily creates or converts a space for pumping or designates a space that is made available to the nursing employee when it’s needed so long as “the space is shielded from view and free from any intrusion” and “is available each time the employee needs to pump.”

The space also must be functional for pumping. It must contain a place to sit and have a flat surface (not the floor) on which the employee may place her pump. DOL goes on to state that “ideally” the space should have an electrical outlet to plug in a pump, which is faster than a battery-powered pump. Also, providing access to a sink near the space for washing hands and cleaning pump attachments would “improve[] the functionality of the space.”

DOL recognizes that employers may meet this obligation “in different ways.” An employer could designate a vacant office or storage room. It could also create a space using partitions if that space is “shielded from view and free from intrusion” perhaps by using a lockable space or having a sign to indicate that the space is in use and should not be entered. In fact, DOL has posted a “do not disturb” door hanger that might fit the bill. The Office on Women’s Health in the U.S. Department of Health and Human Services maintains a site that offers guidance including specific guidance for various industries. DOL also is conducting webinars regarding compliance in various industries. The seminar for the retail and restaurant industries is scheduled for tomorrow (October 18, 2023 at 2pm ET – register here. DOL is posting recordings of these webinars on its breast pumping web page.

Going back to that restaurant—it’s a small business that might have trouble creating space for a nursing mother. It mightbe excused because the FLSA does provide a small business exemption. Employers with “less than 50 employees shall not be subject to [these] requirements [if they] 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 business.”

However, based on DOL’s FAB, it seems that it’ll take a lot to convince DOL that there is an “undue hardship.” It will apply the exemption on an employee-by-employee basis and will take into account that the space and time requirements only are required for an individual nursing mother for one year. DOL, therefore, anticipates that a hardship will only be deemed “significant” in limited circumstances.

All this brings me back to the title of this blog. The best approach to the duty to provide reasonable accommodations to nursing mothers very well may be to just “figure it out.”