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990-003: Nursing Mothers Program

Effective Date: 6/21/2019

Document Change History

Version Number

Release Date

Summary of Changes

Section/Page

Changes Made By

1

6/21/2019

Release

N/A

Office of Human Resources
Policy & Accountability Division on behalf of Office of Assistant Secretary for Health
employmentpolicy@hhs.gov

Concur:
/s/

J. Blair Duncan
Deputy Assistant Secretary for Human Resources
6/17/2019

Approved:
/s/

Scott W. Rowell
Assistant Secretary for Administration
6/18/2019

A. Purpose

This guidance is provided to establish procedures and clarify legal requirements for the Nursing Mothers Program within the U.S. Department of Health and Human Service (HHS).

B. Coverage

This guidance covers all HHS Operating and Staff Divisions (OpDivs/StaffDivs) and must be carried out in accordance with applicable laws, regulations, bargaining agreements, and Departmental policy.

C. References

  1. 29 United States Code (U.S.C.), Fair Labor Standards Act (FLSA), Section 207(r)(1) (new)
  2. Public Law 111-148, Patient Protection and Affordable Care Act, Section 4207, Breaks for Nursing Mothers
  3. Office of Personnel Management (OPM): Guide for Establishing a Federal Nursing Mother’s Program, January 2013
  4. OPM Memo, Nursing Mothers in Federal Employment, December 22, 2010
  5. HHS, U.S. Public Health Service, Office of the Surgeon General, The Surgeon General’s Call to Action to Support Breastfeeding, 2011
  6. U.S. Department of Labor’s Wage and Hour Division, Changes to the FLSA: Break time for Nursing Mothers Provision

D. Responsibilities

  1. HHS, Assistant Secretary for Administration, Office of Human Resources (OHR):
    1. Develops Department-wide human resources guidance and policy consistent with HHS and Office of Personnel Management (OPM) policy, procedures and all applicable Federal laws and regulations; and
    2. Periodically confirms Operating Divisions and Staff Divisions are adhering to HHS and OPM policy and guidance as well as all applicable Federal laws and regulations with regard to nursing mothers.
  2. Operating Divisions and Staff Divisions:
    1. Comply with this guidance, HHS and OPM policy, procedures and guidance, and all applicable Federal laws and regulations; and
    2. Ensure that a private space is available and employees, who are nursing mothers, are given reasonable breaks to express milk.

E. General

HHS has been in the forefront of breastfeeding promotion and support for several decades.  HHS presents targets through Healthy People 2020 goals for breastfeeding:  81.9% of women initiating breastfeeding, 60% of babies being breastfed for at least 6 months, and 34% for a full year.  HHS also supports nursing mothers who want to express milk upon their return to the workplace after the birth of their infant.

According to the Department of Labor, mothers are among the fastest-growing segment of the U.S. labor force.  Recent data indicate that at least 62% of all mothers with children younger than 12 months are employed.  Approximately 70% of employed mothers with children younger than 3 years of age work full-time.  After pregnancy, one-third of these mothers return to work within 3 months, and two-thirds return within 6 months.

Research indicates that intentions to return to work full-time after giving birth are significantly associated with lower rates of breastfeeding initiation and shorter duration.  Some mothers will make the determination not to initiate breastfeeding in anticipation of returning to work.  Given the substantial presence of mothers in our Federal work force, HHS has served as a role model in establishing and assuring lactation support, through documents such as The Surgeon General’s Call to Action to Support Breastfeeding, which includes several action items directed toward employment.  OPM’s Guide for Establishing a Federal Nursing Mother’s Program, lists names of organizations who can provide information on breastfeeding, including the HHS, Office of the Assistant Secretary for Health (OASH), Office of Women’s Health.

F. Requirements

  1. All working mothers who are civilian employees in the executive branch are entitled to breaks during the work day to express milk in a private space, in accordance with law and OPM guidance.
  2. The Fair Labor Standards Act (FLSA) requires employers to provide ‘a reasonable break time for an employee to express milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk;’ and ‘a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk’ (29 U.S.C. § 207(r)(1)).  The Department of Labor refers to this as the Break Time for Nursing Mothers Provision (see References).
  3. OpDivs/StaffDivs must assess their workforce and environment to determine the following:  the number of nursing mothers likely to use the facilities; space needed; resource needs (facilities, maintenance, supplies, etc.), and what, if any, recordkeeping will be necessary.  (Note:  OpDiv/StaffDivs are not obligated to provide space, if they don’t have an employee who needs to express milk; therefore HHS divisions will need to regularly monitor their workforce needs to ensure compliance with the law.)  Information about the lactation accommodations should be widely disseminated within each OpDiv/StaffDiv.  Each OpDiv/StaffDiv should assign the appropriate personnel to oversee operations required for the lactation room(s) and serve as the primary point of contact.

G. Procedures

  1. Private Space.  In accordance with the law, OpDivs/StaffDivs must provide their employees who are nursing mothers with a space that is private - not a bathroom - and free from intrusion by co-workers and the public.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient, provided that the space is shielded from view and free from any intrusion by co-workers and the public.  If the space is not specifically dedicated for the nursing mother's use, it must be available when needed in order to meet legal requirements and OPM guidance.

    It is incumbent upon HHS, as the lead Federal agency responsible for enhancing and protecting the health and well-being of all Americans, to ensure that each nursing mother's privacy is respected when determining the location of private spaces.

‘Aroom for nursing mothers is private space a nursing mother can use to express milk.  This space must be shielded from view and free from intrusion of others.  A nursing mother's room must be functional, with a private space with a place to sit and a flat surface, other than the floor, to place the breast pump and other supplies.  Although there are no size or permanency requirements, these rooms should provide access to electricity for the use of a breast pump, as well as good lighting, a comfortable temperature, and proper ventilation.  Further, a room for nursing mothers should be clean and agencies should provide cleaning wipes and paper towels’ (OPM’s Guide for Establishing a Federal Nursing Mother’s Program, page 3).

Lactation rooms should not be located in, or accessed through, bathrooms, locker rooms or similar facilities, but should be distinct spaces designed for their intended purpose.  Although a sink with hot and cold running water is not a requirement for a lactation room, a sink should be located in as close proximity as possible for handwashing and the washing/rinsing of pump attachments.  OpDivs/StaffDivs may determine the most appropriate means by which to provide private space for a nursing mother.  The following suggestions are provided for consideration:

    1. Dedicated space – A permanent space dedicated as a milk expression room has been found to be an efficient option for many OpDivs/StaffDivs.  It eliminates the need to regularly assess workforce needs to ensure compliance with the law.  Room dimensions for a permanent space designated as a lactation room can vary.  However, a larger size room assures that handicapped users will be appropriately accommodated.
    2. Multi-User space - Multi-user milk expression rooms serve as dedicated space, but are efficient by allowing more than one nursing mother to express milk at the same time.  Multi-user spaces can accommodate two or more nursing mothers, depending upon the need.  Privacy for individual users must be assured.  Privacy can be obtained by use of cubicle partitions or “stations” that include a privacy door with locks or may be obtained by use of a divider or privacy curtain.  The dividers must ensure that each station is completely private.
    3. Flexible space - A variety of flexible spaces may be utilized, such as available offices, conference rooms, rest or break rooms, and other spaces.  Nursing mothers and their supervisors should work together to arrange scheduling for use of flexible spaces.  In the absence of a permanent dedicated milk expression room, a plan denoting clear communication will help nursing mothers know how they will be accommodated.  In addition, the space must be available whenever the nursing mother has the need to pump.
    4. Pumping within a private office - If a nursing mother determines she would like to pump within her private office, any areas that allow visibility into the office should be covered while pumping.  When she is pumping in her private office, the nursing mother should ensure that there is a sign on the door of her office that indicates the need for privacy and indicates that people should not enter her office at that time.
    5. Mobile space – When traditional permanent or flexible milk expression "rooms" are not available for nursing mothers who may be stationed primarily in outdoor settings, other options, such as pop-up tents, mobile options, or space in nearby buildings may provide a solution for flexible, portable options.  Other needs such as access to water should also be considered.
    6. Basic lactation rooms may be created or re-purposed out of little used areas within existing building space.

      OPM’s Guide for Establishing a Federal Nursing Mother’s Program (pages 9-14) covers the requirements for lactation rooms, as well as best practices found at other federal agencies, and ideas for creating ideal private spaces for working mothers.
  1. Reasonable Break Time.  OpDivs/StaffDivs must provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother for up to one year from her infant’s birth, as long as the mother continues to express milk, in accordance with OPM guidance.  Many mothers typically need to express their milk every 2 to 3 hours (OPM Guide for Establishing a Federal Nursing Mothers Program, page 8).  The frequency of breaks as well as the duration of each break will likely vary depending on the individual mother's needs.  Supervisors are required to use their best judgment based on discussions with their employee(s) to determine what is considered reasonable.  Supervisors may extend the time (beyond 1 year of the infant’s birth) based on discussions with the nursing mother and applicable collective bargaining agreements.

    The FLSA does not require mothers to be compensated for breaks taken for the purpose of expressing milk.  However, in accordance with OPM guidance, when the OpDiv/StaffDiv already provides compensated breaks (e.g., 15 minutes in morning and 15 minutes in the afternoon) that employees can use for any purpose, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for such break time.  A nursing mother may also work out a schedule with her supervisor that will allow her to come into the office earlier or leave later than the regular scheduled workday to accommodate nursing breaks. 
  2. Workforce Flexibilities.  OpDiv/StaffDivs are encouraged to utilize current HHS workforce flexibilities to accommodate working mothers who are nursing.  Divisions should review their internal practices, procedures, and collective bargaining agreements before making determinations.  Examples:
    1. Alternative Work Schedules (AWS) - Flexible or compressed work schedules may be established for a nursing mother who needs time off to express milk during normal working hours, consistent with 5 U.S.C. Chapter 61, Subchapter II, and 5 CFR, Part 610, Subpart D.  Consult OPM’s Handbook on Alternative Work Schedules, and Labor-Management Relations Guidance Bulletin: Negotiating Flexible and Compressed Work Schedules, both on OPM.gov, for additional guidance.
    2. Leave and Other Paid Time Off - An employee may be allowed to use annual leave, leave without pay, compensatory time off, or credit hours.
      1. Annual Leave - OpDivs/StaffDivs should be as accommodating as possible in reviewing and approving employee requests for annual leave to express milk, consistent with 5 CFR Part 630, Subpart C, and applicable collective bargaining agreements.
      2. Leave Without Pay - At the discretion of the OpDiv/StaffDiv, leave without pay (LWOP) may be granted to an employee who requests breaks to express milk during normal working hours. Consistent with OPM guidance, OpDivs/StaffDivs are encouraged, whenever possible, to act favorably upon requests by employees for LWOP to express milk.
      3. Compensatory Time Off – OpDivs/StaffDivs may approve requests to use compensatory time off that an employee has earned in exchange for performing an equal amount of time in irregular or occasional overtime work. For employees under flexible work schedules, OpDivs/StaffDivs may approve employee requests to earn compensatory time off for both regularly scheduled and irregular or occasional overtime work, as appropriate.
      4. Credit Hours - Credit hours are hours within a flexible work schedule that an employee elects to work in excess of his or her basic work requirement (e.g., 80 hours in a pay period for a full-time employee) so as to vary the length of a workweek or workday. A nursing mother may be allowed, with supervisory approval, to use accumulated credit hours to fulfill her basic work requirement, thereby gaining time off from work to express milk. If an OpDiv/StaffDiv authorizes credit hours, the maximum amount of credit hours that may be carried over from one pay period to another is 24 hours.
    3. Contractors and Visitors.  OpDivs/StaffDivs may, at their discretion, offer their lactation room/private space to contractors and visitors; however, it is not required.  (See F.1.)
    4. Lactation Room Maintenance, Security, Support, Etc.
      1. Sanitation – a trash can, paper towels, sanitary wipes and cleansers should be available in each lactation room.
      2. Housekeeping – a regular schedule for daily cleaning of the lactation room and emptying of trash should be maintained.
      3. Facilities - issues related to accessibility, housekeeping considerations, equipment maintenance, security (ex. locks, security camera,) involve facilities management.  In addition, facilities management provides solutions for adapting, converting or retrofitting existing space into lactation rooms to include both required and desired elements or features of the lactation room, and provides expertise in planning future building projects to include space for lactation rooms.
      4. Security Personnel – It is recommended that security personnel be knowledgeable about the location of the lactation room or facilities, as well as procedures and appropriate personnel for acquiring information about the lactation room.  A sign indicating the location and designated point of contact for use of the lactation room should be visible upon entrance into the building.

        Additionally, security personnel should be educated about the screening procedures for breast pumps and milk.  Security personnel may use their discretion and examine the actual pump manually.  Nursing mothers should not have to put their breast milk through a metal detector or X-ray screening machine.
      5. Federal Occupational Health (FOH) Nurse or Wellness Coordinator – The FOH Nurse is a resource for developing and promoting the lactation program because of the skill he/she possesses in addressing health needs of employees.  FOH personnel can provide support for integrating the lactation program into existing employee health services.
    5. Additional Guidance.

      See OPM Fact Sheet and FAQs attached to OPM Memo, Nursing Mothers in Federal Employment, December 22, 2010.

      See Appendix for breast pump information by the HHS Office of Assistant Secretary for Health (OASH), Office of Women’s Health.

    G. Policy Information

    Owned by: Office of Human Resources,Policy and Accountability Division (PAD)
    Effective date: June 21, 2019
    Policy Contact Information: employmentpolicy@hhs.gov

    Appendix:  Breast Pumps (provided by HHS, Office of Women’s Health)

    Many OpDivs/StaffDivs provide multi-user breast pumps for their nursing mothers.  Breast pumps are considered medical devices and are regulated by the Food and Drug Administration (FDA).  While personal use breast pumps are intended for use by only one mother, multi-user electric pumps are designed and approved by the FDA to be safe for multiple users.  Multi-user electric breast pumps can be used by more than one nursing mother because they are designed with barriers that prevent cross contamination.  When multiple mothers use an electric multi-user breast pump, each individual user will need to use her own collection kit, consisting of breast pump tubing and milk collection bottles or bags.

    Multi-user electric pumps have stronger, more powerful motors that provide a higher level of suction for more efficient pumping.  These pumps are larger and heavier, more durable and are generally covered by a 3 to 5 year manufacturer’s warranty.

    A nursing mother has the option of using her own personal single use breast pump in the lactation room or area designated for pumping.

    • Typical Costs
      Multi-user electric pumps will generally have a price range from approximately $1,000.00 - $2,000.00.

      Personal use breast pumps (not for sharing) will generally have a range from approximately $150.00 - $500.00.
    • Cleaning Breast Pumps
      Electrical units, which hold the motor and batteries, should be wiped down with a clean paper towel or soft cloth after each use.

      The electrical unit should never be put into water or other liquids for cleaning.  It should also never be cleaned using a microwave sterilizer.

      Breast pump manufacturers may have wipes specifically made for their cleaning breast pumps.

      The instruction manual should always be consulted to determine which parts should be washed and the best method for removing parts that must be cleaned.
    Content created by Office of Human Resources (OHR)
    Content last reviewed on July 29, 2019