FLSA
Now Requires Break Time for Nursing Mothers
The Patient Protection
and Affordable Care Act, better known as the federal Health
Care Reform law, amended the Fair Labor Standards Act
(FLSA) to require employers to provide nursing mothers
time to express breast milk. Section 4207 of the law provides
that for a period of up to one year following a child’s
birth, employers must give nursing mothers “reasonable
break time” each time she needs to express milk. The law
also requires employers to provide nursing mothers a location
to express milk, other than a bathroom, that is shielded
from view and free from intrusion.
Although the law specifies
that an employer is not required to compensate an employee
for these breaks, it does not give any guidance regarding
the definition of “reasonable break time” or set a limit
to the number of breaks an employee can take each day.
Until the Department of Labor issues regulations offering
guidance in this area, employers may want to interpret
this provision conservatively.
An employee who qualifies
as exempt under Section 213 of the FLSA, the executive,
administrative, professional, outside sales, or computer
professional exemptions, are seemingly not entitled to
breaks under the amendments as the portion of the law
amended by Health Care Reform concerns non-exempt employees.
But, there is nothing to indicate the place to express
milk only applies to non-exempt employees. The law also
provides a safe harbor for employers with less than 50
employees, but only if complying with the 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.” Whether this exemption applies
can be difficult to determine. The language does, however,
closely track the undue hardship exception to the reasonable
accommodation requirement under the Americans with Disabilities
Act. Case law and regulations specific to that exemption
may provide some guidance until the Department of Labor
issues regulations in this area.
Indiana and Illinois, along
with several other states, already have statutes regarding
an employer’s obligation to provide breaks for nursing
mothers. The new federal law will not preempt a state
law providing greater protections to nursing mothers.
The new law took effect on March 23, 2010.
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