Employment: Health Care Reform Bill Amends Fair Labor Standards Act to Mandate Breaks for New Mothers
By Ryan T. Neumeyer An amendment to the Fair Labor Standards Act included in the health care reform bill requires employers to provide nursing mothers with “reasonable break time” to express breast milk, for up to one year after the birth of a child. The amendment provides that the employer must 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 break time is not required to be compensated.
Employers with less than fifty employees shall not be subject to the requirements of the amendment if such 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.” The meaning of “undue hardship” has not been defined. However, experience with other employment-related laws suggests that the burden will ultimately rest with employers and may be difficult to prove.
Also uncertain is what constitutes a “reasonable” break time, or what penalties will be imposed for violations. In general, mothers breastfeeding their infant need to express breast milk approximately two to three times during the work day for approximately 15-20 minutes per session, but this varies by individual and time of day. In establishing a reasonable amount of break time, employers should consider the time it will take mothers to travel to the designated area for pumping breast milk.
It is unclear what penalties will apply for noncompliance. The amendment became effective when the health care reform bill was signed on March 23, 2010. The Department of Labor will hopefully issue regulations or guidance on this amendment in the near future. In the meantime, employers should begin to comply with the new amendment by analyzing where such breaks should be given, and if any work to a break room (such as adding locks or blocking windows) is needed. Employers who receive a request from nursing mothers should communicate with the employee to resolve any problems and should not deny such employees break time. Moreover, employers should not assume exemption from the requirements, but should consult with counsel regarding the “undue hardship” standard.
As always, the employment attorneys at Ross, Brittain and Schonberg will be sure to advise you regarding any and all obligations under the FLSA. Please do not hesitate to contact Lynn Schonberg or Ryan Neumeyer with any questions you may have regarding the FLSA and the recent amendment concerning reasonable break time for nursing mothers.
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