Viewpoint: Health Reform Law's Protections for Nursing Mothers Are Welcome but Vague

Breastfeeding moms get a break

By Gina Ciagne, Lansinoh Laboratories Apr 2, 2010

Employers will be held accountable for providing a private place for nursing mothers to pump their milk at work under a provision within the Patient Protection and Affordable Care Act, signed into law in March 2010. The provision amends the Fair Labor Standards Act (FLSA) to require employers, with some exceptions, to furnish "reasonable break time for an employee to express breast milk for her nursing child" for one year after the child’s birth. (For more on this amendment to the FLSA, see the box below.)

For years, because of the sporadic laws in only 25 states and accommodations offered by only a small number 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.

Now, employers will be required to provide nursing mothers with a private place, other than a restroom, to use a breast pump. The provision exempts companies with fewer than 50 workers if the requirement would impose "an undue hardship," a determination left to the employer to make.

While this is a giant step for breastfeeding, the way the language in this section is written might leave the pumping mother in a precarious situation. It's possible she might not be protected under this bill if her employer does not understand the importance of pumping and keeping up her milk supply.

What Is 'Reasonable Break Time'?

The words "reasonable break time" are vague, and what defines an "undue hardship" is debatable. This can leave those with an employer that believes itself justified in not providing accommodations without other options.

The duration of a pumping session depends on each 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 company with less than 50 workers.

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.

The health care law is still a huge leap forward. It offers validation for the importance of breastfeeding within the context of health and preventive medicine.

In the U.S., breastfeeding initiation rates are at their highest. But duration rates (the rate of breastfeeding beyond first few days or weeks) are low compared to other developed nations. Work has been cited as one of the key barriers.

Needed: Structural Change

What is needed is structural change in the U.S. around breastfeeding and breast-pumping accommodations. In March 2010, a joint letter to Congress was initiated by the American Public Health Association (APHA) and co-signed by several organizations, including the American Academy of Pediatrics (AAP), American College of Obstetrics and Gynecology (ACOG), American Academy of Family Physicians (AAFP) and the U.S. Department of Agriculture's Women, Infants, and Children (WIC) program, among others. These organizations are asking Congress for a $15 million "breastfeeding budget" that would promote breastfeeding and protect and support breastfeeding mothers. As it is now, each mother is left to fight her own battle.

The preventive health benefits of breastfeeding impact a baby's health, the mother's health and the health of our society at large. Babies turn into adults, and breastfed babies have been shown to have reduced risk for illnesses, chronic conditions and diseases. This leads to lower health care costs, fewer insurance claims and less absenteeism by mothers and babies because they're sick less often.

To underscore these benefits fully, there should be a concerted effort to make the structural shifts that take the burden off the mother and give her the backup she needs—whether she is a white-collar office worker, a blue-collar worker or whatever her job may be.

Breastfeeding benefits and risk reductions are not selective based on a mother's income or job description. Why should language, such as in the health care law, be so selective regarding who can have the right and who can't?

Gina Ciagne, a certified lactation counselor (CLC), is director of breastfeeding and consumer relations at Lansinoh Laboratories, a provider of breastfeeding support and baby products. She was formerly a public affairs specialist for the Office on Women's Health (OWH) in the U.S. Department of Health and Human Services, where she co-managed the Health & Human Services/Advertising Council National Breastfeeding Awareness Campaign. She is a contributor to

Health Care Reform Act Amends FLSA,

Requires Breastfeeding Breaks

By Jackson Lewis LLP

Under the Patient Protection and Affordable Care Act, employers covered by the Fair Labor Standards Act (FLSA) are required to furnish “reasonable” breaks to mothers to express milk for their infants who are up to one year old. This was provided in an amendment to the FLSA in the act signed by President Barack Obama on March 23, 2010.

The newly enacted section 29 U.S.C. 207(r)(1) of the FLSA requires that:

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:

An employer with less than 50 employees is exempt if the requirements would “impose an undue hardship by causing the employer significant difficulty or expense,” as regards the employer’s size, resources and the structure of its business.

Employers are not required to pay employees who take a breastfeeding break—unless a state law says otherwise.

Paid or Unpaid

The amendment's provision that such time can be unpaid is contrary to the general FLSA mandate that employers pay employees for breaks of less than 20 minutes. However, state laws might limit an employer’s ability to treat the time as unpaid.

While a number of states already impose requirements on breaks, employers operating in states without such a state law must ensure that such breaks and private space are provided.

In states where such requirements have been enacted, employers must adhere to the standard, federal or state, that will be more beneficial to the employee.

-- The law firm of Jackson Lewis LLPrepresents management exclusively in employment, labor, benefits and immigration law and related litigation.Republished with permission. © 2010 Jackson Lewis. All Rights Reserved.

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