The recently enacted Patient Protection and Affordable Care Act of 2010 ("PPACA") amended the Fair Labor Standards Act ("FLSA") to place certain health insurance obligations on employers. These changes, labeled the Nursing Mothers Amendment and found in section 4207 of the PPACA, require employers to provide reasonable breaks for nursing mothers. Federal law did not previously require employers to provide any breaks to employees. These new requirements are effective immediately and thus employers must take prompt action to bring their policies and practices into compliance.
The Nursing Mothers Amendment amends section 7 of FLSA by requiring employers to provide “reasonable” unpaid breaks to female employees for one year after their child’s birth to express milk for the nursing child. The Act imposes two requirements on employers.
- Employers must provide nursing mothers with a suitable location, other than a restroom, that is “shielded from view and free from intrusion from coworkers and the public.”
- Employers must provide “reasonable” unpaid breaks to nursing mothers for one year after the child’s birth. While the term “reasonable” is not defined, employers do not have discretion to regulate the frequency with which each employee takes her breaks. Rather, nursing mothers are entitled to a break each time the employee needs to express milk. Womenshealth.gov, the Federal Government’s source for women’s health information, states that a nursing mother will most likely need to express milk approximately every three hours to maintain a healthy milk supply and relieve uncomfortable fullness while separated from her infant. Further, each break usually takes around 15 – 20 minutes, plus time to get to and from the designated room. As a result, nursing mothers will most likely need one to three breaks within an eight hour work day.
Under the FLSA, breaks of less than 20 minutes in duration are generally compensable. The Nursing Mother Amendment provides that these new mandatory “nursing breaks” are unpaid.
Not all employers are subject to these new break requirements. Employers with less than 50 employees, who would experience “undue hardship” in the course of providing nursing mothers breaks, are exempt. The Amendment states that undue hardship is determined by weighing the “significant difficulty or expense” of providing breaks against the “size, financial resources, nature, or structure” of the business.
Finally, the Amendment does not preempt state laws that are more protective of nursing mothers. Numerous states have laws related to breastfeeding in the workplace, including Arkansas, California, Georgia, Illinois, Indiana, Mississippi, New Mexico, Oklahoma, Tennessee, Texas, Virginia, and Washington.
Employers should review their present policies and practices to determine the appropriate next steps for their company, which may include the following:
- Amend policies and practices to reflect the new break requirements
- Update employee handbooks, training materials, and policy manuals
- Identify physical spaces in all places of business to serve as appropriate nursing mother break locations
For More Information
If you have any questions on these requirements, or if would like assistance creating or reviewing your policies to ensure they are in compliance, contact:
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