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One of the new changes enacted by the Patient Protection and Affordable Care Act (“PPACA”) was an amendment to §7 of the Fair Labor Standards Act (the “FLSA”) to provide for reasonable break time and a place for non-exempt, nursing mothers, to express milk. The Act amended the FLSA to require that employers provide “reasonable break time for an employee to express milk for her nursing child for one year after the child’s birth each time that such employee has need to express milk.” The amendment also requires that employers 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.”
The number of breaks and the duration provided to the nursing mother to express milk may vary by employee depending on need. Employers are not required to compensate nursing mothers for these breaks and the break is normally not considered working time under the FLSA if the employee is completely relieved from duty during that period. However, if the employer otherwise provides compensated breaks to employees, and the nursing mother/employee uses that break time to express her milk, she must be compensated in the same way the other employees are compensated for break time.
With regard to location, a bathroom is not permissible, even if private. The space does not have to be dedicated to the nursing mother’s use, but must be available to her when needed. The space may be created or converted temporarily to accommodate nursing mothers. The key components are that the space is shielded from view and free from intrusion by coworkers and the public.
Employers with fewer than fifty employees may be exempt from the FLSA break time requirement for nursing mothers if compliance would “impose an undue hardship.” This is determined by looking at the difficulty or expense of compliance for a specific employer in comparison with the size, financial resources, nature and structure of the employer’s business. All employees who work for the covered employer, regardless of their worksite, are counted to determine whether this exemption may apply.
Employers will need to look carefully at compliance with this amendment for their business in order to provide both the time and place for this specified break time. In many cases, this may not effect any change where non-exempt employees are entitled to breaks, compensated or uncompensated. However, your break policy will need to be flexible enough to allow a nursing mother such time and additional breaks as needed while she is eligible for this protection.
If you have questions about this Act, or how it may affect your existing policies, please contact your attorney.