Thursday, April 8, 2010

Employers now required to give reasonable break time to nursing mothers

Working women will be pleased to know that the Patient Protection and Affordable Care Act (Affordable Care Act), signed into law by the President on March 23, requires employers to provide a reasonable break time and a private place – other than a bathroom – for an employee to express breast milk for her nursing child for a period of one year after the child’s birth. Employers should note that this new requirement became effective on the date of enactment.

Under Section 4207, which amended the Fair Labor Standards Act to include this new rule, employers with fewer than 50 employees may be exempt if the requirement would impose an undue hardship.

State breast-feeding laws. Prior to the Affordable Care Act, many states enacted laws protecting nursing mothers, but many are very general, requiring only that a mother be allowed to breast-feed her baby in any location in which she is authorized to be (presumably including the workplace). A few states required employers to provide unpaid breaks for employees who need to express milk, unless the breaks would disrupt operations. Some employers were asked to make a reasonable effort to provide a private location for an employee that is close to her work station (other than a toilet stall).

Why is breast-feeding so important? The American Academy of Pediatrics, in a Policy Statement on Breast-feeding, recommends that women without any health problems exclusively breastfeed their infants for at least the first six months. According to the National Institutes of Health, breast-fed infants have fewer illnesses during the first year than babies who are not breast-fed. Breast milk can also help to protect infants against some common childhood illnesses and infections such as diarrhea, middle ear infections, and certain lung infections.

The Office on Women’s Health in the US Department of Health and Human Services notes that breast-fed babies visit the doctor less frequently, spend less time in the hospital and require less prescription medication than babies who are not breast-fed. In addition, because breast-fed babies are healthier, nursing mothers miss less work than mothers who do not breast-feed their babies. This translates into reduced health care costs for breastfed infants and lower medical insurance claims for employers.

What exactly are employers required to do? Under the new law, an employer must provide a reasonable break time for an employee to express breast milk for her nursing child each time the employee needs to express milk for a period of one year after the child’s birth (Fair Labor Standards Act (FLSA) Sec. 7(r)(1)(A), as added by Affordable Care Act Sec. 4207).

The employer must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for an employee to use when expressing breast milk (FLSA Sec. 7(r)(1)(B), as added by Affordable Care Act Sec. 4207).

Compensation not required. An employer does not have to compensate an employee receiving reasonable break time to express breast milk for any work time spent expressing breast milk during the break (FLSA Sec. 7(r)(2), as added by Act Sec. 4207 of the Affordable Care Act).

Undue hardship. An employer that employs fewer than 50 employees is not required to provide reasonable break time or a shielded place for nursing mothers to express breast milk if these requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the:

  • size,
  • financial resources,
  • nature, or
  • structure

of the employer’s business (FLSA Sec. 7(r)(3), as added by Affordable Care Act Sec. 4207).

Relationship with state laws. A state law that provides greater protections to employees is not preempted by these new federal requirements (FLSA Sec. 7(r)(4), as added by Affordable Care Act Sec. 4207).

Effective date. Because no specific effective date is provided by the Affordable Care Act, the new break time law for nursing mothers is considered effective on the date of enactment – March 23, 2010.

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