On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, reform-ing the country’s healthcare system and amending the federal Fair Labor Standards Act (“FLSA”) to require that employers provide reasonable break time, which may be unpaid, for an employee to express breast milk for her nursing child each time the employee has a need to express the milk, for up to one year after the child’s birth. Employers must also provide a place, other than a bathroom, shielded from view and free of intrusion from co-workers and the public which the employee can use during the breaks.
Effective immediately, the new breastfeeding law applies to all employers, except that an employer with less than 50 employees is exempt if complying with the require-ments would impose an undue hardship because of significant difficulty or expense, considering the size, financial resources, nature or structure of the em-ployer’s business.
The law neither defines “reasonable break time” nor sets a limit on the number of breaks per day an em-ployee may take. That it allows for the break time to be unpaid seemingly conflicts with both the FLSA’s requirement that rest breaks of up to 20 minutes be paid and the prohibition on partial day deductions from exempt employees’ salaries. The U.S. Department of Labor (“DOL”) likely will clarify these points in regula-tions it plans to issue. However, the DOL has not yet set a date for the issuance of the regulations.
Until DOL clarifies obligations under the new law, employers should comply with the law’s general requirements as closely as possible. Apparently, an employer may have nursing mothers use any meal or other breaks already provided to the employee to satisfy break requirements under the new law. However, employers should also provide additional break time if needed by an employee.
Because the new law does not preempt state law, employers will need to comply with any more generous applicable state law requiring provision of either paid rest or meal breaks or breaks for expressing breast milk, as well as any wage and hour law that would prohibit not paying for the breaks required under the new federal law. Currently, 24 states, the District of Columbia, and Puerto Rico have workplace breastfeed-ing laws in place. A few examples of those with more generous breastfeeding laws are Maine and New York, both of which require employers to provide reasonable breaks to express breast milk for up to three years after a child’s birth. In New York, the state’s Department of Labor has defined “reasonable” to mean at least 20 minutes, unless the room provided to express milk is not close to the employee’s work station, in which case a minimum of 30 minutes is considered reasonable. And, in California, all employers regardless of size and generally without exception must provide nursing mother breaks.