The Patient Protection and Affordable Care Act (PPACA) was one of the laws that was enacted as part of President Obama's healthcare reform initiative. Contained within the thousands and thousands of pages of the law's text is a provision that amends the Fair Labor Standards Act (FLSA), which governs wages and hours work, to provide a break time requirement for nursing mothers. This law provides that employers must provide reasonable break time for an employee to express milk for her nursing child for one year after the child's birth each time such employee has the need to express the milk. Employers with fewer than 50 employees are not subject to the law if compliance would impose an undue hardship. However, all employees who work for the employer must be counted — not just those at a particular work site. Also, employees who are exempt under the FLSA are excluded from the break time obligation.
Recently, the Department of Labor has attempted to provide guidance to employers on complying with the Act. Contained within one of the DOL's informal "Fact Sheets" it indicates that the law became effective when the PPACA was signed into law on March 23. While the DOL did not specify any minimum number, frequency or duration for the breaks, it does indicate that the employer must provide a place other than a bathroom as a location for the break. The location need not be reserved exclusively for a nursing employee's use and it may be a location that is temporarily created or converted for this purpose. The location must be:
- Functional as a space for expressing breast milk;
- Shielded from view; and,
- Free from any intrusion by co-workers or the public.
Employers are not required to treat these breaks as compensable time, or hours worked. However, if the employer allows paid breaks, it must compensate a nursing employee in the same way it does other employees if she uses it for the purpose of expressing breast milk. Also, the time for the break must be paid if the employee is not completely relieved from duty during the break. So, for example, if the nursing employee is on a business telephone call while expressing breast milk, that time is compensable.
While this new law is untested, and the guidance provided by the DOL is informal, the prudent course of action is for all employers covered by the act to follow these pronouncements pending further developments of the law.