What you need to know:

A recent amendment to the Fair Labor Standards Act requires employers to provide reasonable breaks and space to nursing mothers.

What you need to do:

Employers should familiarize themselves with break requirements, consider what private locations they may be able to use to accommodate nursing mothers, and consult with counsel to formulate appropriate practices and policies.

Basic requirements

Congress recently passed an amendment to the FLSA as part of the Patient Protection and Affordable Care Act 2010 requiring employers to provide “reasonable” breaks for nursing mothers.

The amendment, which became effective on March 23, has two main requirements. First, under the PPACA, employers must provide “a reasonable break time” for an employee to express breast milk for her nursing child. The law further directs that employers shall provide such breaks for one year after the child’s birth.

Second, in addition to providing reasonable breaks, employers must provide a private place where the employee can express breast milk. According to the PPACA, the place must be one “other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public…”.

Application and exemption

Notably, the PPACA exempts any employer with fewer than 50 employees if providing the break or place to express breast milk would “impose an undue hardship” on the employer by causing it “significant difficulty or expense” in light of the employer’s size, resources and business structure.

Additionally, employers are not required to pay for breastfeeding breaks under the PPACA. However, depending on the length of the break, the PPACA may run contrary to existing Department of Labor regulations which require employers to compensate employees for rest breaks of short duration (5-20 minutes) or even some state laws related to breaks. Since a number of states already have laws related to breastfeeding in the workplace, it is important to recognize that the PPACA does not preempt those laws, and employers with operations in those states should continue to comply with state law if it is more protective of employees.

Avoiding potential claims

Although the PPACA lays a foundation by requiring “reasonable” breaks and affording exemptions based on “undue hardship,” the language of the amendment leaves a number of practical issues unresolved. In particular, the law does not provide any guidance with respect to how many breaks should be provided or as to the duration of such breaks. It is also unclear how the “undue hardship” standard will be applied. As a result, it is important for employers to consult with counsel in formulating appropriate practices and policies.

Going forward, employers must be aware of break requirements and consider what private locations they may be able to use to accommodate nursing mothers. Additionally, employers who receive requests should be flexible regarding the frequency and duration of breaks and should communicate with employees to avoid potential problems. Finally, employers with less than 50 employees should not automatically assume they are exempt from the requirements, but instead should consult with counsel regarding the application of the undue hardship standard to their particular situation.