Under the Patient Protection and Affordable Care Act, employers covered by the Fair Labor Standards Act (FLSA) are now required to furnish “reasonable” breaks to nursing mothers to express milk for their infants. This was provided in a provision adding the following as a new subsection (r):
An employer shall provide:
(A) a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth; and
(B) 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.
There are two exceptions to these requirements under the health care law:
- Employers are not required to pay employees who take a breastfeeding break—unless a state law says otherwise.
- An employer with less than 50 employees is exempt if the requirements would “impose an undue hardship” by causing it “significant difficulty or expense” as compared to the employer’s size, resources and business structure.
"For years, because of sporadic laws in only 25 states and accommodations offered by a handful of employers, working mothers were left to fend for themselves. They had to fight for a private, clean place to pump—not the bathroom—or felt forced to give up nursing early because of the barriers that work posed," commented Gina Ciagne, a certified lactation counselor and director of breastfeeding and consumer relations at Lansinoh Laboratories, a provider of breastfeeding support and baby products. "Now, employers will be required to provide nursing mothers with a private place, other than a restroom, to use a breast pump."
The provision leaves some big issues unresolved, she added. "The words 'reasonable break time' are vague, and what defines an 'undue hardship' is debatable," Ciagne observed. "This can leave those with an employer that believes itself justified in not providing accommodations without other options."
Moreover, "the duration of a pumping session depends on each individual mother, so it is troublesome to leave the definition of 'reasonable time' up to the employer. Because it is open to interpretation, this places the burden on the employee to figure out how she is going to make it work with her employer, especially for women working in a smaller company with less than 50 workers," she added.
So, while the new law opens the door for breastfeeding mothers, "they must walk through it, and might have to continue to fight for the 'reasonable time' they need, Ciagne said.
Waiting for the Regs
According to an advisory from the law firm Alston & Bird:
"While it will likely be several months before the Department of Labor issues regulations regarding these new requirements, this amendment to the FLSA became effective when the health care reform bill was signed on March 23, 2010. To avoid potential claims, employers should be aware of the break requirements and consider what private locations they may be able to offer nursing mothers to express breast milk. Employers who receive a request from nursing mothers should not be rigid regarding the frequency and duration of the breaks and should communicate with the employee to resolve any problems. Employers with less than 50 employees are cautioned not to assume exemption from the requirements, but should consult with counsel regarding the undue hardship standard set forth in the law."
Stephen Miller is an online editor/manager for SHRM.
Viewpoint: Health Reform Law's Protections for Nursing Mothers Are Welcome but Vague, SHRM Online Benefits Discipline, April 2010
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