Hunton Employment & Labor Perspectives

The much-publicized health care reform act contains a particular provision that has not received much media exposure, but which may require employers to take immediate action.  The 2010 Patient Protection and Affordable Care Act (“PPACA”), signed into law by President Obama on March 23, amends the Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable break time” for nursing mothers to express breast milk.

Section 4207 of the new law, titled “Reasonable Break Time for Nursing Mothers,” is effective immediately and requires that employers provide, for one year after a child’s birth, reasonable break time whenever a nursing employee has a need to express milk.  Though employers are not required to pay employees during this break time, “reasonable break time” is not defined in the amendment, nor is there any specified limit on the number of breaks that can be taken per day.

Employers must also provide nursing mothers with a place in which to express milk that is shielded from view and free from intrusion by coworkers and the public.  The amendment explicitly states that the provided place cannot be a bathroom.

While the new amendment applies to all employers covered by the FLSA, there is a possible exemption for businesses with less than 50 employees.  If such small businesses can show that providing nursing breaks or a designated place to express milk would impose an “undue hardship,” such as causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business, the new requirements do not apply.

Although many states already have statutes requiring breaks for nursing mothers, this is the first federal law to impose such a requirement.  However, the amendment does provide that if a state law has greater protections for nursing mothers than the new federal law, then employers should continue to follow the state law requirements.

Until the Department of Labor issues regulations regarding the amendment, employers should aim to avoid potential claims under the new federal law.  Employers that have not already done so should consider what private locations they can make available to nursing mothers and should also communicate with employees who request nursing breaks about the expected duration and frequency of such breaks in order to prevent misunderstandings and problems.