April 14, 2010
As part of the recently enacted Patient Protection and Affordable Care Act ("PPACA"), the Fair Labor Standards Act has been amended, effective immediately, to require breaks for nursing mothers. Under the new law, employers must provide "reasonable" breaks for nursing mothers to express breast milk for up to one year after the child's birth. The PPACA does not contain any specific guidance with respect to the duration of such breaks or the number of breaks to be provided.
In addition to providing reasonable breaks, employers must also furnish a private location, other than a bathroom, for these breaks. This place for breaks must be "shielded from view and free from intrusion from coworkers and the public."
Employers with fewer than 50 employees may be exempt from the statute's new requirements if the breaks would cause "undue hardship" by subjecting the employer to "significant difficulty or expense" when considered in relation to relevant factors such as size, financial resources, nature or structure of the business.
Until the Department of Labor provides regulations and guidance regarding the issues surrounding this new entitlement for nursing mothers, employers of all sizes should follow the direction, as well as the spirit, of the new law when developing appropriate practices and procedures to help ensure compliance.