The Department of Labor Wage and Hour Division in July released a
fact sheet explaining a provision in the Patient Protection and Affordable Care Act (PPACA) that requires employers to provide reasonable break time and a private space for nursing mothers to express milk. This provision, which amends Section 7 of the Fair Labor Standards Act (FLSA), took effect on March 23 when President Obama signed PPACA into law.
Under the new law, employers must offer “a 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 the milk.” In addition, employers must provide a private place “free from intrusion from coworkers and the public” for the use of expressing milk. PPACA states that a bathroom, even if it private, is not permissible.
According to the DOL fact sheet, a temporary location that is created or converted into an acceptable space is permissible, and the space does not need to be solely dedicated to the nursing mother’s use as long as it is available when needed and meets the requirements.
Employers are required to provide a reasonable break to nursing mothers who are not exempt from the FLSA’s overtime pay requirements. The break time for expressing milk is not required to be compensated unless the employer already provides paid break time and the employee chooses to use that time to express milk.
The DOL fact sheet also states that businesses with fewer than 50 employees are not subject to this provision if it would impose an “undue hardship,” which is determined based on difficulty or expense of compliance in comparison to the size of the company; financial resources; and the nature and structure of the business. When determining if this exemption applies, an employer must count all employees, regardless of work site. Employers should consult with their attorney regarding the undue hardship standard.
The provision does not preempt state laws that provide greater protections to employees. Currently,
24 states and the District of Columbia already have breast feeding laws.
Despite the many unanswered questions regarding this new law, DOL expects employers to comply with the provision.
In order to ensure a complete understanding of the requirements outlined on this page, ABC recommends members review official agency guidance and consult with legal counsel whenever necessary.