The highly publicized and much-debated health care reform act includes a provision that has not received significant media attention, but which may require employers to take immediate action. Section 4207 of the 2010 Patient Protection and Affordable Care Act (PPACA), signed into law by President Obama on March 23, 2010, amends the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, by requiring employers to provide nursing or breastfeeding employees with reasonable break time to express their breast milk. (See P.L. 111-148, § 4207.) This PPACA provision took immediate effect.

Although the Department of Labor's Wage and Hour Division (WHD) has not yet issued regulations on the PPACA's nursing employee break requirements, on July 15, 2010, the WHD published "Fact Sheet #73: Break Time for Nursing Mothers under the FLSA" (fact sheet)1 to provide general information regarding this new requirement.

Break Time for Nursing Mothers

According to this recently enacted FLSA amendment, employers must provide: "Reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express milk." P.L. 111-148, § 4207 (emphasis supplied). Reasonable break time is not defined in the amendment and there is no specified limit on the number of breaks or amount of break time that a nursing mother may take per day. Seeking to shed light on this provision, the recently released fact sheet states that employers are "required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother." The fact sheet further states that the "frequency of breaks needed to express milk as well as the duration of each break will likely vary."

Since the breast-feeding mother determines the amount and duration of her lactation breaks, employers should not hinder an employee's lactation break based on a supervisor's perception that the employee is abusing her break time. Rather, to the extent there is a concern about nursing mothers abusing their break time, supervisors should be encouraged to document their concerns and observations by keeping track of the time and length of each break.

Location for Nursing Mothers

The new FLSA amendment also requires employers to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk." P.L. 111-148, § 4207. Thus, employers are required to provide not only the time, but also a private location for nursing employees to express their breast milk. The fact sheet states:

The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother's use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

The federal law does not require employers to provide a lactation room per se, but the law is clear that some private space, outside of a bathroom, must be made available.

With that said, a variety of unanswered questions concerning the location for nursing mother breaks remain. Some industries may have physical space challenges that do not allow for a private space outside of bathroom facilities. And questions surface concerning whether locked doors are required or even advisable, whether an organization is required to build a space, and how to accommodate mobile employees, among others. Troubleshooting such employer-specific concerns will be essential.

Employee and Employer Coverage

The PPACA's nursing mother break time requirement only applies to employees who are not exempt from the FLSA's overtime pay requirements. While employers are not required to provide breaks to nursing mothers who are exempt from the FLSA's overtime requirements, such employers might still be required to provide such breaks under existing state laws.

The recent nursing mother break time requirements are a mandate to all employers. But those employers with less than 50 employees need not provide such breaks if doing so would impose an undue hardship. Undue hardship is determined by analyzing "the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business." P.L. 111-148, § 4207. Notably, all employees who work for the employer, regardless of work site, will be counted to determine whether this exemption applies.

Compensating Nursing Mothers

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. This is an exception to the FLSA's rule that breaks of less than 20 minutes be paid as compensable time. Where employers already provide compensated breaks, however, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for their break time. Further, the FLSA's general requirement that the employee must be completely relieved from work duty or else the time must be compensated as work time equally applies to break time to express breast milk.

Interaction with State Laws

Currently 24 states, including California, Georgia, Illinois, and New York, as well as the District of Columbia, already have laws related to breast-feeding mothers in the workplace. The PPACA does not preempt state laws that offer greater protection for nursing mothers who work. Thus, employers should be aware of state or local laws that are more expansive or "employee friendly" than the federal counterpart. Currently 17 states have laws that require employers to provide lactation breaks. And, while many of these states have provisions that are similar to the PPACA, no state exactly mirrors the federal law.

Further, state law provisions that expand nursing mother protections vary. New York, for example, provides that nursing employees receive break time and accommodation for up to three years after the child's birth. Some states may require employers to make reasonable efforts to provide lactation rooms that are close to an employee's work area. Other states may require employers to provide refrigeration for breast milk and/or equip nursing break areas with electrical outlets so that breast pumps may be used. Understanding the governing state nursing mother break time requirements is a necessity because the more protective provisions will govern.

What Employers Should Do Now

Since the PPACA went into immediate effect, employers should take prompt action to understand the PPACA and the applicable state nursing mother break time requirements as well as to bring policies and practices into compliance. Employers should consider the following action steps:

  • Change work policies and practices to allow for nursing mother breaks. If the state has no law governing nursing mother breaks or if state law provides fewer employee protections than the PPACA, employers must amend policies to include reasonable breaks for nursing mothers in an out-of-sight location that is free from intrusion. If, however, an employer is operating in a state that provides greater protections than what the PPACA offers, the employer should review existing policies to confirm compliance with state statutes. Employers who operate a multistate business should review the laws of each applicable state and update the policies accordingly.
  • Revise employee handbooks, training materials and policy manuals. After gleaning the applicable PPACA and state requirements for nursing mother breaks, employers should revise employee handbooks and other printed materials to reflect the new break policies. In addition, employers should revise manager and supervisor training materials to include the updated policies.
  • Train managers about new break time policies. Employers should conduct training sessions for managers and supervisors to educate them about changes in the company's break time policies. Management should be informed that when qualifying nursing mothers request breaks to express milk, managers must allow them to take a reasonable break in an appropriate location.
  • Identify spaces in each place of business that could be an appropriate nursing mother break location. Employers should conduct a physical survey of each business site where employees report to work to identify places that can be used by mothers who wish to take breaks to express their milk. The PPACA does not require a separate lactation room be made available for this purpose; but it does require that employees be "shielded from view" and "free from intrusion" during their break. Remember, bathrooms cannot qualify as appropriate lactation locations under the PPACA.

The nursing mother break time requirement is a new federal law that requires immediate action. While we wait for the federal regulations and case law to develop, employers are well served to apply their best judgment and consult with legal counsel. Implementing a new national policy with potentially differing requirements across specific states may be a daunting task, but effective legal counsel can help employers navigate the myriad of differing state nursing mother break time laws and help employers troubleshoot company-specific issues where current lactation law may not yet be developed. Advance consideration of this law and a thoughtful and well-planned approach to implementation will ensure a smooth compliance process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.