The Patient Protection and Affordable Care Act recently signed into law includes an amendment to the Fair Labor Standards Act entitled “Reasonable Break Time for Nursing Mothers,” which requires employers to provide reasonable break time to employees who are nursing mothers to express breast milk for their infants for 1 year after the child’s birth (each time such employee has the need to express the milk). The new law also requires employers to make reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public (e.g., a lockable door and blinds or curtains if applicable), which may be used by an employee to express breast milk. Since Congress did not specify an effective date for this requirement, it went into effect on March 23, 2010 when the President signed the bill.
An employer with less than 50 employees will not be subject to the requirements of this new law if such requirements would impose “an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” This will be a fact specific inquiry on which no further guidance is provided for employers seeking to rely on the smaller employer exception.
This new law requires an employer to provide reasonable break time for an employee to express breast milk for her nursing child, but does not define what is “reasonable.” The United States Department of Labor (“DOL”) will likely issue implementing regulations to define what is meant by “reasonable”, provide penalties for violations and resolve other issues which arise from this the statute. In the meantime, the DOL and employers may look to state statutes already providing for such breaks. For example, the Oregon statute on which the federal law was modeled requires employers to provide a 30 minute break to express milk during each four hour period. Please note that the new federal law will not preempt any state statute which provides greater protections to employees.
If an employee takes a complete break and does not work while expressing her breast milk, the break is unpaid under the new law (even if less than 20 minutes). As a result, if the employee is taking a break solely to engage in this activity, they should clock or sign out on their time cards. Needless to say, if the employee continues to work while engaging in this activity and just seeks privacy to express her milk for nursing purposes, the time should be paid.
Employers should promptly make their management team aware of this new law and create a policy to ensure compliance once it is determined how the new law will affect your workplace. Please let us know if you have any questions about this new law or we can help you draft an appropriate policy for your workplace.