The recent passage of health care reform has saturated the news media for weeks; however, one provision that will affect many employers has received little press. The Patient Protection and Affordable Care Act, signed into law by President Obama on March 23, 2010, amends the Fair Labor Standards Act (FLSA) to require employers to provide time for nursing mothers to express breast milk. Specifically, Section 4207 of the new law, “Reasonable Break Time for Nursing Mothers,” provides that, for a period of up to one year following a child’s birth, employers must give an employee “reasonable break time” each time she needs to express milk. The law also requires employers to provide a location, other than a bathroom, shielded from view and free from intrusion where the employee can express milk.

Though the law specifies that the break time is unpaid, it does not give any guidance as to the definition of “reasonable break time” or set forth any limit to the number of breaks that can be taken per day. The provision was introduced into the health care reform bill by Oregon Senator Jeff Merkley, and it is modeled after Oregon’s current state law. Oregon’s law became effective in 2007 and defines “reasonable time” as 30 minutes for every four hours worked.

The new requirement applies broadly to all employers covered by the FLSA. Only employers with less than 50 employees are potentially exempt, if the requirements would impose an “undue hardship” by causing significant expense or difficulty in relation to the size, financial resources, nature or structure of the business. The statute does not further define “undue hardship” or specifically address whether the employee or the employer has the burden of proving undue hardship. However, experience with other employment-related laws suggests that the burden will ultimately rest with employers and may be difficult to prove.

This is the first federal law to require breaks for nursing mothers, though many states have already enacted similar statutes. Currently 24 states, Puerto Rico and the District of Columbia have laws about breastfeeding in the workplace. If a state law has greater protections for nursing mothers than the new federal law, the employer must follow the state law requirements.

While it will likely be several months before the Department of Labor issues regulations regarding these new requirements, this amendment to the FLSA became effective when the health care reform bill was signed on March 23, 2010. To avoid potential claims, employers should be aware of the break requirements and consider what private locations they may be able to offer nursing mothers to express breast milk. Employers who receive a request from nursing mothers should not be rigid regarding the frequency and duration of the breaks and should communicate with the employee to resolve any problems. Employers with less than 50 employees are cautioned not to assume exemption from the requirements, but should consult with counsel regarding the undue hardship standard set forth in the law.