Breaks to express breast milk not considered FMLA time

For immediate release - January 11, 2011

For more information, contact Michelle Pedzich at 585-381-8340 ext. 123

Responding to inquiries concerning the relationship of the break time provision to the FMLA, the Department of Labor (DOL) stated on December 21, 2010, that it “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.” Under the FMLA, an employee may take time off to “care for” a newborn, which the FMLA regulations refer to as “bonding time.” In its recent notice, the DOL explained that it “does not consider expressing milk at work to constitute bonding with or caring for a newborn child.” 

The DOL also stated that 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. The DOL also stated that if an employer terminates a nursing mother employee because she takes breaks to express milk, the DOL may pursue such a claim on behalf of the employee.

For more information, please visit the Department of Labor's webpage regarding break time for nursing mothers. 

Source: Jackson Lewis

HR Works, Inc., located at 246 Willow Brook Office Park in Fairport (Rochester), New York, is a human resource management outsourcing and consulting firm serving more than 700 clients. HR Works provides benefits administration outsourcing; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; affirmative action programs; compensation programs; training of managers and HR professionals; and HRIS and self-service technology.