The recent and massive health care reform bill, titled the Patient Protection and Affordable Care Act (the Act), was hotly debated and garnered much media attention prior to its passage. One provision of the Act, however, received none of the media spotlight, yet will have a significant impact on a number of employers. The Act amends Section 207 of the federal Fair Labor Standards Act (FLSA) to now require employers to provide unpaid break times during the work day for nursing mothers to express breast milk. Specifically, Section 4207 of the Act, “Reasonable Break Time for Nursing Mothers,” states that an employer must provide a reasonable break time for an employee to express breast milk for her nursing child up to one year after the child’s birth every time such employee has need to express the milk.
The nursing mother break time requirement took effect immediately upon President Obama’s signing of the Act; however, the rules for enforcement have not yet been put in place. The Department of Labor (DOL) is in the process of developing regulations to implement this new nursing mother break time requirement.
Applicability and Exemption for Undue Hardship
The nursing mother break time requirement applies broadly to all employers covered by the FLSA. Only an employer of less than 50 employees is potentially exempt, if such requirement 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. Based on other employment-related laws, it can be presumed that the burden will be on the employer to prove “undue hardship.” Employers with less than 50 employees are cautioned not to assume that they are exempt from the nursing mother break time requirement, but should consult with counsel regarding the applicability of the undue hardship exemption to their current situation.
Providing a Private Space
Under the Act, an employer is required to provide nursing mothers with a location, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public in which to express breast milk. The Act does not require an employer to make major changes to the built environment, but rather provide employees with a designated private space in which to express milk. It is expected that such private space will be required to have at a minimum a locking door, electrical outlets, and be located in close proximity to a bathroom, as well as the employee’s work space.
“Reasonable” Break Time
The Act does not provide any guidance as to what constitutes a “reasonable” break time nor does it set forth any limit to the number of breaks that can be taken during the work day. As the provision was introduced into the Act by Oregon Senator Jeff Merkley and appears to be loosely modeled after Oregon’s current state law, it is possible that the DOL will look to Oregon’s existing state statute for guidance as to the interpretation of “reasonable” break time. Oregon requires employers to provide employees with a 30-minute break time to express milk for every four hour work period.
Unpaid Break Time
The Act states that breaks for nursing mothers can be unpaid, creating the assumption that such breaks need not be considered “hours worked” for the purpose of calculating overtime. This provision, however, appears to be in direct conflict with the FLSA’s general requirement that employees must be compensated for breaks lasting less than 20 minutes because such breaks are deemed to be too short in duration to be excluded from the workday as a whole. Additionally, it is unclear how states will treat the break times under state wage and hour laws. It is likely that the DOL will specifically address and, hopefully resolve, this issue in its forthcoming regulations. Until then, however, employers should require nursing mothers to keep accurate time records that detail the number of breaks taken to express breast milk and the length of such breaks. Likewise, employers should exercise caution in making decisions to not compensate a nursing mother whose break lasts less than 20 minutes.
Relation to State Nursing Statutes
This is the first federal law to require breaks for nursing mothers during the work day, though many states already have similar statutes in place. If a state law provides greater protections for nursing mothers than the new federal law, the employer must follow the state law requirements. Thus, employers will need to review both federal and state statutes to determine compliance.
While the DOL works to define terms and processes for the nursing mother break time requirement, employers must prepare to accommodate nursing mothers in the workplace. To avoid potential issues, employers should be proactive in identifying private locations they may be able to offer nursing mothers to express breast milk and consider working with counsel to draft a written policy covering the new break time requirements. Until final regulations are published by the DOL, employers are wise to work with nursing employees to resolve any issues surrounding the frequency and duration of requested break times to express breast milk.
McDonald Hopkins counsels and advocates on behalf of clients in labor and employment matters. If you have any questions regarding reasonable break time for nursing mothers under the amended FLSA, or other state nursing mother break time laws, please contact:
Nicole J. Gray 216.348.5418
Victor T. Geraci 216.430.2026
Labor and Employment Practice
We have an impressive team of labor and employment attorneys who specialize in representing management in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment and human resources issues and representing employers in state and federal courts and administrative agencies in all aspects of labor and employment-related litigation.