Federal law requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth—each time the employee needs to express the milk (the frequency and duration of such breaks will likely vary). Employers are also required to provide a place (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public, and that may be used by an employee to express breast milk. These requirements are included in section 7 of the Fair Labor Standards Act (FLSA)—a federal statute. See 29 U.S.C. 207(r).

The federal law provides that employees who work for employers covered by the FLSA and that are not exempt from the FLSA’s overtime pay requirements (outlined in Section 7 of the FLSA) are entitled to breaks to express milk. And although employers who are exempt from the requirements of section 7 are not required under the FLSA to provide breaks to nursing mothers, they may be obligated to provide such breaks under state laws.

The FLSA requirement of break time for nursing mothers to express breast milk does not preempt state laws that provide greater protections to employees—for example, providing compensated break time; providing break time for exempt employees; or providing break time beyond one year after the child’s birth.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. But where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. And the FLSA provides that unless the employee is completely relieved from duty, the time must be compensated.

All employers covered by the FLSA—regardless of the size of their business—are required to comply with the requirement to allow break time to express breast milk. But employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

Under the Fair Labor Standards Act (FLSA), federal law mandates that employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth, whenever the employee needs to do so. Additionally, employers are required to offer a private space, not a bathroom, for this purpose. This federal requirement applies to employees who are not exempt from the FLSA’s overtime pay requirements. However, employers with fewer than 50 employees may be exempt from this requirement if they can prove that compliance would impose an undue hardship based on the business's size, financial resources, and structure. In Virginia, while there is no specific state statute that expands upon these federal protections for nursing mothers, employers must still adhere to the FLSA standards. It's important to note that while the FLSA does not require employers to compensate for breaks taken to express milk, if an employer provides compensated breaks, a nursing mother should be compensated for break time used to express milk in the same way as other employees.