In a provision drawing little notice, the Patient Protection and Affordable Care Act, better known as the Heath Care Reform Act, amended the federal Fair Labor Standards Act (FLSA) to require employers to provide "reasonable" break time and a private place other than a bathroom for an employee to express breast milk for her nursing child for one year after the child's birth. This provision took effect on March 23.
Employers need not compensate employees for these breaks, which is an apparent exception to the long-standing FLSA rule that short rest breaks are considered compensable time worked. In addition, employers with less than 50 employees may be exempt from this requirement if it would impose an undue hardship.
This new federal law does not pre-empt state laws that provide greater protections to employees. Twenty-four states, including Minnesota and Colorado, the District of Columbia and Puerto Rico, have laws related to breastfeeding in the workplace, and many states have laws requiring rest breaks in general. Employers will, therefore, need to review both federal and state statutes to plan compliance. Whether breaks required by this new federal law are to be given in addition to rest breaks required by state laws is an open issue at this point.
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