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.
Recess Appointments Fill Vacant
NLRB Seats
Three of the five seats on the
National Labor Relations Board (NLRB) have been vacant since January,
2008. Since that time, the two members of the NLRB, consisting
of one Republican and one Democrat, have continued to issue decisions,
but only on matters to which they could agree.
On March 27, 2010, President Obama filled two of the three Board
vacancies with the recess appointments of Democratic nominations
Craig Becker and Mark Pearce. The move allowed the White House
to bypass the Senate Confirmation process, which promised to be
extremely contentious, especially concerning the nomination of
Becker. But, notably absent from the President’s appointments
was Republican nominee Brian E. Hayes, which had been pending
along with the nominations of Becker and Pearce.
Republicans and pro-business groups
opposed both Pearce and Becker because of their anticipated pro-labor
viewpoints. Prior to joining the NLRB, Becker was an associate
general counsel to both the Service Employees International Union
(SEIU) and AFL-CIO, where he outwardly supported the Employee
Free Choice Act, or more commonly known, card check legislation.
Prior to his appointment to the NLRB, Pearce was a partner at
a New York law firm primarily representing unions and their members.
Due to the vacancies and leadership
change in the White House, the NLRB has failed to issue any controversial
decisions or reverse any Bush-era NLRB decisions. Now, with a
3-to-1 “pro-labor” majority, and with no particular timetable
for action on Hayes’ nomination, expect the NLRB to make several
employee-friendly rule changes and decisions, including reversal
of the pro-employer decisions made during the Bush years. The
good news is that the recess appointments will only last until
Congress adjourns at the end of 2011, not the usual four year
term for NLRB members. Buckle up and stay tuned!
Updated HIPAA Rules Affect
Business Associates
The Department of Health &
Human Services (HHS) recently updated the Health Insurance Portability
& Accountability Act of 1996 (HIPAA). These changes are contained
in the Health Information Technology for Economic and Clinical
Health (HITECH) Act, which took effect on February 17, 2010, and
affect all “business associates.” HHS began enforcing the rules
on February 22.
Under HIPAA, a “business associate”
is a person or entity that performs functions or provides services
that involve the use or disclosure of patients’ individually identifiable
personal health information (PHI) on behalf of a covered entity
(which may include employers who offer self insured health plans
to their employees). Business associates may include entities
providing billing services claims processing, practice management,
benefit management, utilization review, or quality assurance reviews.
Other entities that are less obvious but could be also be deemed
business associates include attorneys, accountants, consultants,
paper destruction and recycling companies, medical coders or transcriptionists,
software & information systems vendors and temporary workers.
Under the updated rules, businesses are now directly subject to
HIPAA’s requirements to keep PHI private and secure from breach.
Failure to comply may subject businesses to civil and criminal
penalties.
If you are a covered provider,
you should have sent out revised Business Associate Agreements
to all of your business associates by now. If you are a business
associate to a covered provider, you likely have received, or
will receive shortly, a revised agreement. You should pay particular
attention to the Business Associate Agreement requirements for
establishing policies and procedures that should include establishing
safeguards and employee training to protect PHI and to reduce
the risks of a security breach. The agreement should also contain
the requirement for a business associate to provide prompt notice
to a covered entity in the event a security breach is discovered,
and may also include broad indemnification provisions requiring
the business associate to pay for all costs associated with any
such breach.
If you have any questions concerning
the HITECH Act rules or Business Associate Agreements, please
contact us.
The articles
in The KDDK Advantage are considered legal information and should
not be taken as legal advice.
|
