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The new Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation of 2010 (the Healthcare Reform Law), contains a little known provision that amends the Fair Labor Standards Act (FLSA) and, effective March 23, 2010, places two new requirements on employers with respect to non-exempt employees who are nursing mothers. 

"Reasonable" Unpaid Breaks Requirement

First, employers must provide non-exempt nursing mothers with reasonable, unpaid breaks to express breast milk during the first year following the birth of a child.  Employers can determine what constitutes a "reasonable" amount of time to express milk, but the frequency of required breaks is subjective and based on the employee's "need" to express milk. 

The U.S. Department of Labor ("DOL") has the authority to draft regulations offering guidance in this area; however, until the DOL implements such regulations, employers should expect that the average nursing mother will need between 15 and 25 minutes of break time every two to four hours to express milk.  Note that while expressing milk may only take approximately 15 minutes, additional time will be required to set up, clean pump parts, and store the milk. 

Lactation Room Requirement

Second, employers must offer a workplace location for nursing mothers to express milk.  The room must not be a bathroom, and it must be shielded from view and free from intrusion by coworkers and the public.  The definition of "intrusion" is one with which employers will have to wrestle.  For example, it is unclear whether multiple nursing mothers can use the same location to express milk at the same time, and whether an employee's current office can be designated in lieu of some other location.  Having access to a nearby clean and safe water source and sink for washing hands and rinsing out breast-pump equipment and to refrigerator storage are not required, but employers may want to consider providing them. 

What Employers Are Covered?

The new rules apply to all employers with one exception.  The Healthcare Reform Law has a safe harbor provision that potentially exempts employers with fewer than 50 employees; however, the exception applies only if the employer can demonstrate that complying with the 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."  This means that each employer with less than 50 employees still must make an individualized determination as to whether it falls within the undue hardship exception. 

The DOL will likely issue regulations on what constitutes an undue hardship.  Until it does so, however, the Americans with Disabilities Act undue hardship exception, 42 U.S.C. § 12111, its regulations, 29 C.F.R. § 1630.2, and its case law provide some guidance for employers.  In short, the determination is highly fact specific and proving undue hardship generally involves more than showing that it will cause the employer to bear some additional cost or expense.

What Employees Are Covered?

The new requirements do not apply to employees who are exempt under Section 213 of the FLSA, such as employees who meet the executive, administrative, professional, outside sales, or computer professional exemptions.  At the same time, however, such exempt employees cannot be docked pay for taking breaks to express milk.

Relationship with Related State Laws

The new requirements do not preempt state laws.  Twenty-four states, the District of Columbia, and Puerto Rico already have laws that relate to expressing milk in the workplace.  Notably, some of these state laws provide greater protection to nursing mothers.  Thus, employers should consider the possible application of state laws in formulating their policies and practices.

Employers Need to Act Now

Because the amendment does not have an express effective date, it is therefore presumed to be effective as of March 23, 2010.  Consequently, employers should proactively formulate and implement policies and practices to ensure compliance and to prevent the potential criminal and civil penalties available under the FLSA.  As part of that process, employers should train their managers and supervisors to help ensure compliance with these new requirements and prevent any potential retaliation claims by nursing mothers who take advantage of the unpaid breaks and request a private location to express milk.