New FLSA Provision Mandates Breaks, Private Space Until Child’s First Birthday

A new amendment to the Fair Labor Standards Act (FLSA) contained in Section 4207 of the Patient Protection and Affordable Care Act of 2010 (PPACA) provides that employers must offer “reasonable breaks” for nursing mothers. Under the new law, an employer must provide “a reasonable break time for an employee to express breast milk for her nursing child for [one] year after the child’s birth each time such employee has need to express the milk.”

In addition, the employer must offer an employee a private “place” to express breast milk. The statute defines “place” as a location that is “shielded from view and free from intrusion from coworkers and the public,” and it specifically excludes “bathrooms” as an appropriate “place.”

No Compensation Required

Under the new law, an employer is not required to compensate mothers taking “reasonable breaks” during “work time.” The employer may not, however, dictate the scheduling of the break time. Instead, the nursing mother may take a “reasonable break time” each time she has the need to do so.

The law does not define what is “reasonable” or what constitutes “work time.” Current Department of Labor (DOL) regulations provide that an employer must compensate employees for rest breaks of short durations, typically spanning 5 to 20 minutes as common in the employer’s industry. By contrast, the DOL has exempted longer meal breaks from this requirement. Until the DOL issues guidance on this issue, employers need not compensate employees under the new law.

Undue Hardship Exception

The FLSA amendment affects all employers, with a limited exception for certain small employers. Specifically, Section 4207 exempts any employer with fewer than 50 employees from compliance if the new requirements would impose an “undue hardship.” The rule would recognize an undue hardship if the employer incurred significant difficulty or expense in complying with the new law, when considered in relation to the “size, financial resources, nature, or structure” of the employer’s business.

Some employers may recognize this “undue hardship” language as similar to the fact-intensive inquiry used to evaluate whether an employer must provide a reasonable accommodation under the Americans with Disabilities Act. Future guidance from the DOL may reveal whether this “undue hardship” standard under the FLSA will be applied in a similar manner.

Since the FLSA applies to virtually all employers, this requirement may be especially challenging for the large employer that has several small stores or facilities across the nation. The lack of any exception pertinent to employers with more than 50 employees may signal that the new amendment will be applied across-the-board for large employers, but the DOL may refine this issue as well.

No State Law Preemption

At least 24 states, Washington, D.C. and Puerto Rico have enacted workplace laws relating to nursing mothers. The new FLSA amendment does not preempt state laws that offer “greater protections” than Section 4207 of the PPACA.

Examples of states with broader laws include Colorado, which requires employers to provide a reasonable break time for an employee to express breast milk for her nursing child for up to two years after the child’s birth, and Maine and Vermont, which have similar laws that extend the time frame for up to three years after the child’s birth. Mississippi, Montana and New York have laws that prohibit employers from discriminating against breastfeeding mothers that use lawful break time to express milk. Under Indiana law, private employers with more than 25 employees must provide, among other things, a private location for mothers to express breast milk, and public employers must provide mothers with paid breaks that run currently with other break times already offered to the employee, if possible.

Next Steps for Employers

The statute does not include an effective date, so until the DOL issues further guidance, employers should consider the provision effective immediately. Employers should reexamine current policies and procedures to ensure compliance with this amendment to the FLSA. Additionally, employers should identify private spaces for nursing mothers, train management about the new requirements, and timely communicate this new right to employees.

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