As of March 23, 2010, federal law requires employers to provide nursing mothers “reasonable break time” to express breast milk for up to one year after the birth of their child. An amendment to the Fair Labor Standards Act containing this requirement was inconspicuously buried in Section 4207 of the Patient Protection and Affordable Care Act, better known as the federal Health Care Reform law.1 Seventeen states and the District of Columbia already have statutes that speak to an employer’s obligation to provide rest breaks for the purpose of expressing milk.2

The new federal law does not pre-empt a state law that provides greater protections. Thus, employers will need to review both federal and state statutes to determine how to comply. Aside from potential conflicts with state legislation directly dealing with break time for expressing milk, there will be numerous questions regarding the interplay between the new requirement and other state and federal laws regarding rest and meal breaks generally, as well as the patchwork of laws regarding breastfeeding (a related, but separate, issue) that exist in nearly all states.

Defining “reasonable” break time: The U.S. Department of Labor (DOL) has not yet defined how many breaks and how much break time is “reasonable” or how to penalize violators. It is possible that the DOL will look to existing state statutes for guidance. For example, Oregon’s statute, which many believe served as a model for the federal amendment, requires that employers provide employees 30 minutes to express milk for every four-hour work period.3 Other statutes have been interpreted to require breaks of “no less than twenty minutes … at least once every three hours.” 4 Regardless of what the DOL decides, employers must comply with state law if state law is more protective. But, in the meantime, it is unclear whether complying with state law will satisfy the federal reasonableness standards.

Concurrent breaks vs. stacking breaks: Several state statutes give employees discretion to combine or overlap breaks to express milk with paid rest breaks or meal breaks. Most of the state statutes mandate that, if possible, such breaks run concurrently with any break time already scheduled.5 Some, however, require an employer to “permit an employee to use paid break time or meal time, or both [unpaid break time and paid break time].”6 The question employers will be asking is whether, under their state law, they can require employees to combine breaks under the federal statute with breaks already mandated or allowed by state law, or whether employees have the right to stack their federally mandated break on top of breaks already required or allowed by the state.

Harmonizing the federal statute with other federal and state regulations on paid breaks: The amendment provides that breaks for nursing mothers need not be “compensated,” creating the assumption, contrary to the general rule on breaks of less than 20 minutes, that the break time will not be considered “hours worked.” It is unclear how states will treat this under their minimum wage and rest/meal break laws when it comes to compensation, or categorization as “hours worked,” particularly if the mandatory federal break time is handled concurrently with state law break time.

Exemption for undue hardship: Under the federal statute, employers of less than 50 employees may be exempt if they can show that the requirement would pose an “undue hardship,” which is generally defined in antidiscrimination law as significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business or the nature and structure of its operation. It is unclear how many employers would actually be able to prove undue hardship. According to Sen. Jeff Merkley, D-Ore., who sponsored the federal amendment and helped pass Oregon’s statute, no company in Oregon has prevailed in arguing that they could not accommodate employees under Oregon’s statute.7 Note: Some state statutes provide an exemption if breaks to express milk would “disrupt” the employer’s operations. Employers in such states should not assume that an exemption under the state statute would exempt them from an applicable federal statute or vice-versa.8

Greater protections under state statutes: Employers in states with similar legislation should not assume that compliance with the federal statute will equal compliance with their obligations under the state statute. For example, several statutes require that the rest break accommodation be made for two or three years instead of one. And, although the federal statute requires employers to provide a place, other than a bathroom, shielded from view and free from intrusion, for employees to use for expressing milk, many state statutes additionally require that this place be “in close proximity to the workplace.”9