By far, the most common misunderstanding about the "Break Time for Nursing Mothers" law is related to the undue hardship exemption for small businesses. The media, employers, and employees often report that small businesses with fewer than 50 employees are not required to meet the obligations of the "Break Time for Nursing Mothers" law. The U.S. Breastfeeding Committee recommends adding clarification from the Request for Information on Break Time for Nursing Mothers that 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.
Recommended Language for Added FAQ:
Q: How can my business receive an undue hardship exemption?
A: Because the factors that would cause the employer "significant difficulty or expense in relation to the size, financial resources, or structure of the employers business" 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.
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. Employers with 50 or more employees must comply with the law without exception.
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. 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. 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.