The Fair Labor Standards Act (FLSA) does not require rest or meal periods, except as amended under the Affordable Care Act (ACA) for nursing mothers, but it does set standards for when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time. Many states, however, require paid and/or unpaid meal and/or rest breaks.

The ACA amends the FLSA to require that employers 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 the employee needs to express milk (29 USC Sec. 207). Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for this purpose. These provisions do not preempt a state law that provides greater protections to employees.

Unpaid breaks. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. The Department of Labor (DOL) states that breaks for expressing milk would not properly be considered Family and Medical Leave Act (FMLA) leave or counted against the FMLA leave entitlement. The DOL encourages employers to permit nursing employees to make up unpaid break time.

Frequency and duration. According to the DOL, the frequency of breaks needed to express milk varies, depending on factors such as the age of the baby, the number of feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. Therefore, the DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift and that longer shifts will require additional breaks to express milk. The analysis of reasonable time must also include the time it takes to get to the lactation site; the time it takes to gather, set up, and clean a breast pump or other supplies; and the time it takes to secure and store the milk. The DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express milk.

Exemptions. Smaller employers with fewer than 50 employees are exempt from the break time rule only if the employer can demonstrate that compliance with the statute would cause the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” All the employees of an employer are counted for the purpose of determining whether the employer meets the 50-employee threshold. This is a difficult standard to meet. These provisions do not preempt a state law that provides greater protections to employees.

The amendment does not apply to white-collar exempt employees (29 USC 213(a)), certain employees within particular industries, or individuals who hold specific positions (29 USC 213(b)). To the extent employers choose, nonetheless, to provide these rest breaks to salaried exempt employees (as it is expected most employers will do), they should not seek to make deductions from salaries for lactation breaks. Salaried exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide.

State laws. Most states have passed legislation that explicitly allows mothers to nurse/express milk in public or in semipublic places, such as restaurants, public transportation facilities, and other locations where the public is present. Many states allow working mothers to nurse their children and/or to express milk during working hours. Some state laws require that employers provide reasonable time for an employee to nurse or express milk or to coordinate designated break times to coincide with the employee's need to nurse or express milk.

DOL Wage and Hour Division regulations do specify when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time subject to federal minimum wage and overtime requirements (29 CFR 785.18 through 785.23).

Bona fide meal periods. Employers are not required to pay employees for time spent during bona fide meal periods. Bona fide meal periods are ordinarily breaks that last at least 30 minutes, but they may be shorter under special conditions. They do not include coffee or snack breaks; these are rest periods that may have to be counted as paid work time.

Free from duty. During such an unpaid meal period, an employee must be completely relieved from duty for the purpose of eating a regular meal. It is not necessary that an employee be permitted to leave the premises if he or she is otherwise completely freed from duties during the meal period. An employee who is required to perform any duties, whether active or inactive, while eating is not considered to be completely relieved of duties. For example, an office employee who is required to eat at his or her desk or a factory worker who is required to be at his or her machine is working while eating. Some courts, however, have not required that the employee be completely relieved from duty during bona fide meal periods. Instead, they examined whether the employee's time is spent predominantly for the employer's benefit.

Firefighters. Meal periods must be counted as paid work time for firefighters employed on tours of duty of 24 hours or less. This applies only to firefighters who are exempt from overtime because they are employed on a tour-of-duty basis, as defined in Section 207(k) of the FLSA (29 CFR 553.223, 29 USC 207(k)).

Short rest breaks of 5 to 20 minutes are common in the workplace. Rest breaks are not required by federal law, but if they are offered, they must be counted as paid work time. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.

Many states require paid and/or unpaid meal and/or rest breaks. Federal law requires breaks of 20 minutes or less to be counted as paid work time (29 CFR 785.18).

Are short rest breaks compensable when they’re taken under the FMLA? As noted above, the FLSA does require short rest breaks up to 20 minutes in duration to be compensated, as such breaks are primarily to the benefit of the employer. However, in limited circumstances—if rest breaks, even those of less than 20 minutes, primarily benefit the employee—they are not compensable. (An example of a rest break that primarily benefits the employee would be an accommodation break needed to assist with an employee’s chronic back pain.) When FMLA-protected breaks are necessary to accommodate the employee’s serious health condition—predominately benefitting the employee—they are not compensable under the interpretation of the FLSA. FMLA expressly provides that FMLA-protected leave may be unpaid. Furthermore, this unpaid basis has been considered and permitted in conjunction with the requirements of the FLSA. Note, for example, that unpaid leave under the FMLA is afforded special treatment in its interaction with FLSA’s salary basis rule for determining exempt status. An exempt employee will not lose his or her exempt status if his or her weekly salary must be adjusted to account for leave taken on an unpaid basis under the FMLA. Employees exercising their right to FMLA are entitled to the same benefits they would receive if they were not taking FMLA leave. So, if employees are regularly entitled to two paid rest breaks during the workday, the FMLA-protected employees must receive this same compensable time. However, the remaining break periods may be unpaid and counted toward the worker’s annual FMLA entitlement.

Under certain conditions, sleeping time is paid work time. Different rules apply depending on whether the employee is on duty for fewer or more than 24 consecutive hours.

Less than 24-hour duty. An employee who is required to be on duty for fewer than 24 hours is working, even though he or she is permitted to sleep or engage in other personal activities when not busy. For example, a telephone operator who is required to be on duty for specified hours is working even though he or she is permitted to sleep when not busy answering calls. It makes no difference that the operator is furnished facilities for sleeping. The operator's time is given to his or her employer. He or she is required to be on duty, and the time is work time.

Duty of 24 hours or more. When an employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude from paid work time meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished by the employer, and the employee can usually enjoy an uninterrupted period of sleep. If the sleeping period is more than 8 hours, only 8 hours will be excluded. If there is no agreement that the time not be counted, the 8 hours of sleeping time and meal periods are paid work time.

If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get at least 5 hours of sleep, the entire period must be counted as working time.

Employees residing on employer's premises. Employees who reside on their employer's premises on a permanent basis or for extended periods are not considered to be working all the time they are on the premises. Ordinarily, they have periods of complete freedom from all duties and enough time for eating, sleeping, and entertaining. It is difficult to determine the exact number of hours worked under these circumstances, so any reasonable agreement of the parties that takes into consideration all the relevant factors will take precedence.