The Fair Labor Standards Act ("FLSA") was amended on March 23, 2010, when President Obama signed the Patient Protection and Affordable Care Act. The amendment requires employers to provide unpaid breaks, as well as a private area in the workplace, for nursing mothers to express breast milk for up to one year after the child’s birth. The break time is unspecified other than that employers must provide "reasonable break time." The amendment also requires "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public."
The language of the amendment states that employers covered by the FLSA that employ fewer than 50 employees are not required to provide the breaks "if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business." Thus, a small employer that does not comply with the amendment has the burden to prove an “undue hardship.” This could be quite difficult.
Questions remain regarding how to handle the breaks for overtime purposes and providing the breaks to certain classes of employees. The amendment states that employers need not pay employees for "reasonable break time." What is "reasonable" is not defined – in time or number of breaks. Federal regulations regarding breaks indicate "rest periods of short duration, running from 5 minutes to about 20 minutes are common in the industry...[and] must be counted as hours worked." (29 C.F.R. § 785.18). Further, the amendment was added to Section 7 of the FLSA. Section 7 does not apply to white-collar exempt employees and certain employees within particular industries or those employees in certain positions. Yet, some employers will choose to provide the breaks to nursing mothers regardless of their exempt status. Employers must be careful not to make deductions for these breaks because such deductions could destroy the employees' exempt status.
It must be noted that many states, including Illinois and California, already require these breaks and "lactation areas" under state law. State laws that provide greater protections to nursing mothers are not preempted by the amendment.