In March 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“PPACA”), which contained a little-known provision that became effective immediately: the so-called Break Time for Nursing Mothers Law (“Nursing Mothers Law” or the “Law”). Employers have since struggled to understand the everyday implications of the new Law in the workplace, resulting in many employers risking noncompliance with the Law. The Department of Labor (“DOL”) recently responded to this reality by issuing a Fact Sheet on the Nursing Mothers Law and seeking comments from the public to aid in clarifying the various provisions of the Law (and offering a sneak-peek into the DOL’s own interpretation of the Law). Employers have until Feb. 22, 2011 to provide the DOL with much-needed feedback; such feedback may result in the issuance of implementing regulations that would shape employers’ obligations under the Law.

A Look at the Law: Reasonable Time, Privacy and Location, Location, Location

The Nursing Mothers Law (Section 4207 of the PPACA) amended the Federal Labor Standards Act (“FLSA”) by requiring employers to provide nursing mothers private space and reasonable break time to express breast milk after the birth of her child. Specifically, the Law requires employers to provide: (i) “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and (ii) “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.”

Reasonable Break Time: Not All Nursing Mothers Are Created Equal

The “reasonableness” of the break time provided to nursing mothers necessarily includes consideration of the duration of each break and the frequency of breaks needed to express breast milk. Accordingly, DOL guidance has clarified that not all nursing mothers are created equal – employers’ obligations will vary based on the individual nursing mother’s specific needs. For example, DOL guidance explains that the frequency of breaks needed to express breast milk varies depending on such factors as the age of the child. In a child’s early months, the child may need as many as eight to 12 feedings per day, requiring the nursing mother to express a greater amount of breast milk than a mother nursing an older child. On average, however, the DOL expects that nursing mothers will need to express breast milk two to three times during an eight-hour shift.

The DOL has explained that, although the actual act of expressing breast milk typically takes about 15 to 20 minutes, employers must consider other factors when determining the “reasonableness” of the break time, including: (i) the time it takes the nursing mother to walk to and from the lactation space and the wait, if any, to use the space; (ii) the time it takes the nursing mother to retrieve her breast milk pump and other supplies, particularly if stored in a location separate from the lactation space; (iii) the time it takes for the nursing mother to unpack and set up her own breast milk pump, unless the employer provides the nursing mother with an already unpacked and set-up pump; (iv) the efficiency of the breast milk pump; (v) the time it takes for the nursing mother to walk to and from a sink or other running water to wash her hands and the breast milk pump attachments before and after using the pump to express breast milk; and (vi) the time it takes for the nursing mother to store her expressed breast milk in a refrigerator or personal cooler. Employers must also ensure that the nursing mother has a place in the workplace to store the pump and an insulated container in which to store the breast milk.

Privacy and Location: Not All Lactation Spaces Are Created Equal

The DOL has explained that employers must ensure that the lactation space is functional as a space for nursing mothers to express breast milk. The lactation space must be private and shielded from public view and access. If practical, employers are required to make a private room available for use by nursing mothers. If a private room is not practical, employers are required to create a private lactation space for nursing mothers by using partitions and curtains, covering windows, placing a lock on the door whenever possible and posting a sign that designates when the lactation space is in use. The employer is not required to create a permanent, dedicated space for nursing mothers. Importantly, however, the lactation space cannot be a bathroom. The lactation space also cannot be so far from the nursing mother’s work area as to make it impractical for her to take breaks to express breast milk. The lactation space will also be deemed inadequate where the number of nursing mothers needing to use the space prevents a nursing mother from taking breaks or results in a prolonged waiting time. The DOL also recommends that the lactation space have a place for the nursing mother to sit and a flat surface other than the floor on which to place the breast milk pump.

The DOL’s Request for Information specifically seeks comments on what conditions are necessary to make certain spaces normally used for other purposes (e.g., a locker room) appropriate as a lactation space for nursing mothers. The DOL also seeks comments on how employers can provide reasonable break time and private space for nursing mothers who do not have a fixed workplace (e.g., drivers) and nursing mothers whose worksites are located outside of the workplace (e.g., at a client’s worksite). DOL guidance clarifies that employers are required to communicate with nursing mothers and other necessary parties, such as the individuals in charge of the employee’s worksite, in making proper arrangements under the Nursing Mothers Law.

The More You Know: Three Noteworthy Provisions of the Law

Statutorily, break times under the Nursing Mothers Law are unpaid. However, if an employer provides paid break time, it must similarly compensate nursing mothers for break time taken for the purposes of expressing breast milk. Any additional time taken by nursing mothers to express breast milk beyond the authorized paid break time can, of course, be uncompensated.

The Nursing Mothers Law statutorily applies to all employers covered by the FLSA but exempts those with fewer than 50 “employees” (as defined by the FLSA) that can demonstrate that their compliance with the Law would impose an undue hardship on their business. Whether compliance with the Law would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison with its size, financial resources and the nature and structure of its business.

Although not provided for in the text of the Nursing Mothers Law, DOL guidance states that nursing mothers should give their employers notice of their intent to take break time to express breast milk and, similarly, employers should inquire of nursing mothers whether they intend to take break time to express breast milk. This communication is encouraged to facilitate compliance with the Law.

Employers Take Note: Timely Compliance with the Nursing Mothers Law Is Key

Although the Nursing Mothers Law is the first federal law to require special arrangements for nursing mothers, there are many state laws that impose such obligations on employers. The Law does not preempt state laws that provide greater protections to employees (e.g., paid break time). Employers should not only comply with and stay apprised of developments relative to the federal Nursing Mothers Law, but must also ensure compliance with similar state laws applicable to their workplaces. Employers should also draft, clearly communicate, provide training on and consistently and non-discriminatorily implement appropriate policies to ensure compliance with the Law. Employers interested in taking part in the clarification of the new Law should provide comments to the DOL before Feb. 22 to ensure that their workplace realities are considered.