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Health Care Reform Act: Nursing Mother Accommodations

December 9, 2010 by Kim Kimbell
 
Kim Kimbell

NEW LEGAL REQUIREMENT
BREAK TIME AND A DESIGNATED SPACE FOR NURSING MOTHERS

President Obama signed the Patient Protection and Affordable Care Act, H.R. 3590 (PPACA), on March 23, 2010 and the Reconciliation Act of 2010, H.R. 4872, on March 30, 2010. One of the many outcomes of this new act is that it amended Section 7 of the Fair Labor Standards Act to require that employers accommodate nursing mothers with a private area (not the company restroom) to express breast milk for the first year of their child’s life.

The new requirement is not a total surprise when one thinks about the fact that women comprise approximately one-half of the workforce, are the primary breadwinner in almost four out of ten families and women with children under age three are one of the fastest growing segments of the workforce. It has been proven that the longer a woman breastfeeds her child, the mother’s risk of serious diseases such as diabetes, heart disease and breast cancer is lower and the child’s risk of infections, obesity, diabetes, and other diseases and conditions is lower. Because of this, medical health experts recommend that women breastfeed for the first year or more. Employers are responding and are:

  • Easing the transition of mothers who return to work following the birth of a child.
  • Assisting mothers to attend work rather than having to take time away from work to express milk.
  • Helping control healthcare costs by supporting efforts to keep infants healthy.
  • Ensuring that women know that breastfeeding will be accommodated.
  • Providing an environment that assists employees with work-life balance.

WHAT THIS ACT MEANS TO EMPLOYERS:

  • Employers are required to provide reasonable break time for an employee to express breast milk for her nursing child, each time she has the need to, for one year after the child’s birth. The exact definition of “reasonable” has not yet been established. The frequency of breaks needed and the duration of each break will likely vary. In Oregon State, “reasonable” time for milk expression is defined as: “a 30-minute rest period to express milk during each four-hour work period, or the major part of a four-hour work period, to be taken by the employee approximately in the middle of the work period.” This follows the FLSA requirements and also covers exempt and part-time employees.

    The effort should be to match the biological rhythm of a breastfeeding mother and child to the structured rhythm of the workday as closely as possible. To keep her milk supply, a breastfeeding woman who is away from her child should express milk regularly. Research indicates that a 30-minute break per four hours is needed for the woman to get to the area for breast feeding, set up the pump, express adequate milk, clean pump parts, get the milk to refrigeration and return to her desk.

  • Only employees who are not exempt (non-exempt) from the FLSA’s overtime pay requirements are entitled to breaks to express milk and there is no requirement to compensate breaks taken to express milk. However, where employers already provide paid breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are for their break time. The FLSA does not preempt State laws that provide greater protections to employees.
  • Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public, which may be used by an employee to express breast milk.” A bathroom, even if private, is not permissible under the Act. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. Some creative solutions to this space issue might be:
    • Designated space of at least 4’ x 6’ with a chair, sink, and electrical outlet
    • Space designated with a sign or reserved on a calendar that rotates (i.e.between offices, conference rooms, etc.)
    • A designated space shared by several employers in an “employee-only” area of a retail strip, mall, etc.
    • An agreement between employers allowing a breastfeeding employee to have business access to a designated space within another company.
    • Privacy panels to block the windows of work vehicles on the road (patrol cars, taxis, etc.) or use of County buildings.
  • Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance imposes an undue hardship. Whether compliance would be an undue hardship is determined by evaluating the difficulty and/or expense for the employer in comparison to the size, financial resources, and structure of the employer’s business. The definition of “undue hardship” is yet to be specifically defined.
  • The federal requirements do not preempt a state law that provides greater protections to employees. The subject of accommodations for breastfeeding mothers has been on the radar screens at the state level for several years. It was first addressed in the need for privacy in public locations and more recently, privacy in the public workplace.
    • Forty-four states, the District of Columbia and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location.
    • Twenty-eight states, the District of Columbia and the Virgin Islands exempt breastfeeding from public indecency laws.
    • Twenty-four states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace.
    • Twelve states and Puerto Rico exempt breastfeeding mothers from jury duty.

For additional information about the FLSA requirements, you can go to http://www.wagehour.dol.gov and/or call their toll-free information and helpline, available 8 a.m. to 5 p.m., 1-866-4USWAGE (1-866-487-9243).

For information on the laws addressing breastfeeding in your state, you can go to the National Conference of State Legislatures resource summarizes the laws and recommendations.

To learn more about employment laws that your workplace must be in compliance with and how to achieve that compliance, contact us.

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