The massive health care bill signed into law by President Obama last week includes a little-noticed provision mandating that employers provide “reasonable” breaks for nursing mothers to express milk for infants for up to one year after the child’s birth. The new law, which amends Section 207 of the Fair Labor Standards Act (FLSA), also requires employers to provide some space “other than a bathroom” for mothers to express milk. Importantly, the amendment does not apply to employers with fewer than 50 employees if its requirements would “impose an undue hardship by causing the employer significant difficulty or expense.”

Although the FLSA’s regulations generally provide that employees should be compensated for breaks lasting less than 20 minutes—as such breaks are deemed to be part and parcel of the workday—the amendment specifies that breastfeeding breaks need not be counted as compensable time. The amendment also clarifies that the FLSA does not preempt state law providing greater protections to breastfeeding mothers.

The new mandates should be familiar to Illinois employers, who are already subject to the Illinois Nursing Mothers in the Workplace Act, which requires employers to provide “reasonable unpaid break time” to an employee who “needs to express breast milk for her infant child” in a room or other location in close proximity to the work area “other than a toilet stall.” 820 ILCS 160/10. However, there are at least two key differences between the requirements of the two laws. First, the new federal law expressly requires employers to provide a space to new mothers other than a restroom, which is obviously more favorable than the Illinois mandate to provide a space “other than a toilet stall.” Second, while the new federal law cuts off the right to breastfeeding breaks for mothers of infants one year after the child’s birth, the Illinois law does not define the age of an “infant” and may provide protection for mothers beyond the child’s first birthday. In situations where one law provides more generous benefits than the other, employers are required to apply the law that is most beneficial to the employee.