A short and largely unpublicized provision in the Patient Protection and Affordable Care Act, which President Obama signed into law on March 23, 2010, expands employer requirements for lactating employees.

Under the new law, employers that are subject to the Fair Labor Standards Act (most employers with one or more employees) must provide "a reasonable break time" to employees for the purpose of expressing breast milk. Employers must provide the break time whenever the employee has a need to express breast milk. While employers are not required to pay employees for this break time, they must provide the lactating employee a private place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.

The law does contain several employer-friendly restrictions. For example, employers are only required to provide break time to lactating employees for up to one year after the child's birth. In addition, the law exempts employers with fewer than 50 employees if providing the break time would "impose an undue hardship" on the employer, described as "significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business." Department of Labor regulations should provide further guidance on the law, including the undue hardship exception, but those regulations are not expected to be issued for at least several months.

The new federal law is similar in many ways to the laws that exist in growing list of states regarding support for lactating mothers. Employers operating in states with pre-existing laws relating to lactating employees must comply with the provisions of each applicable law that provide the greatest protection to employees. In Indiana, for example, private employers need only allow lactating employees time to express breast milk during regularly scheduled breaks. Under the federal law, Indiana employers must comply with the more restrictive federal requirement mandating that employers give lactating mothers a reasonable break time each time the employee has a need to express breast milk. Similarly, worksites not subject to any state law may be subject to the new federal law. For example, private employers in Indiana with fewer than 25 employees are not subject to the state's lactation law but are subject to the new federal law unless the "undue hardship" exemption applies.

The federal lactation law became effective in March 2010 upon passage of the health care reform laws. Baker & Daniels will continue to monitor the law and provide alerts on new developments. In the meantime, employers are encouraged to review their personnel polices to ensure that they comply with all federal and state requirements.  

Laws requiring protections for lactating employees (typically mandating reasonable unpaid break time and a private location to express milk) exist in:

  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Georgia
  • Hawaii
  • Illinois
  • Indiana
  • Maine
  • Minnesota
  • Mississippi
  • Montana
  • New Mexico
  • New York
  • Oklahoma
  • Oregon
  • Rhode Island
  • Tennessee
  • Vermont

Several states encourage but do not require policies including:

  • North Dakota
  • Texas
  • Virginia
  • Washington
  • Wyoming