One section of the recent health care overhaul (Patient Protection and Affordable Care Act, Public Law 111-148, signed by President Obama on March 23, 2010,) amends the Fair Labor Standards Act (the Amendment) to require employers to provide reasonable unpaid breaks for nursing mothers to express milk. The break must be provided “each time such employee has need to express the milk” for one year after the child’s birth.

Employers with fewer than 50 employees may be able to avoid this requirement, but only if they can demonstrate that such requirements create an “undue hardship” (i.e., it causes the employer significant difficulty or expense relative to the employer’s resources).

Employers also are required to provide a private break area (but not a restroom), shielded from view and free from intrusion by co-workers and the public for this purpose. Although wage and hour regulations provide that rest periods of short duration (up to approximately 20 minutes) must be paid, this Amendment specifically provides that employers are not required to compensate nursing mothers for these breaks.

This Amendment also states that it does not preempt state laws with more generous provisions for nursing mothers. Ohio law (R.C. §3781.55) broadly addresses a mother’s right to breast-feed in any location of a place of public accommodation where the mother otherwise has access. Thus, Ohio employers with places of public accommodations (e.g., restaurants, banks, retail stores) must provide working nursing mothers with the option of taking the break in a private break area or in the place of public accommodation.

Because an effective date for this provision was not specified, the new requirements for nursing mothers are presumably effective immediately.