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Break Requirement for Nursing Mothers Raises Unanswered Questions

By Joanne Deschenaux  8/14/2013
 

The Patient Protection and Affordable Care Act’s (PPACA) break-time requirement for nursing mothers to express breast milk for their children became effective when the PPACA was signed into law on March 23, 2010, but many companies are still not aware of the requirement, Gregg Salka, an attorney in the New Jersey office of Fisher & Phillips, told SHRM Online.

“Employers need to read up on the law and get in compliance quickly,” he said.

The provision requires covered employers to allow “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk,” according to the Wage and Hour Division of the U.S. Department of Labor (DOL),

Companies also 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.”

What’s Reasonable?

The law raises several questions that it does not answer, Salka said. How many daily breaks are required? How much time is “reasonable”? An employer should make an individualized evaluation based upon a particular employee’s circumstances, he recommended.

The number and frequency of breaks can depend on several things, such as the number of feedings in a baby’s normal daily schedule, the effect a child’s age has on feeding needs and whether the infant is eating solid food. The DOL suggests that “typically” two or three breaks in an eight-hour shift would be sufficient. However, more might be required during longer shifts.

The duration of a “reasonable” break also may depend on the individual’s situation. Relevant considerations might include how long it takes the worker to walk to and from the break location, how much time she must spend expressing the milk (the DOL suggests that this would normally be 15 to 20 minutes) and the amount of time she must devote to setting up for, cleaning up after, and adequately storing, the milk.

What Kind of Space Is Required?

A bathroom, even if private, is not a permissible location under the PPACA. However, employers are not required to construct a separate space for nursing mothers.

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. According to the DOL, “A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.” This means that the room should have seating, a door that locks and windows that can be covered. An employer doesn’t have to provide a refrigerator, but there should be a space in which to store the expressed milk, Salka explained. 

Must Breaks Be Compensated?

Although the law states that “an employer shall not be required to compensate an employee” for the reasonable break time taken, this is a confusing area, Salka said. The DOL has also said the break may count as compensable work time in some situations, such as when the employee has not been “completely relieved from duty” during the break. And short breaks for purposes other than expressing milk are usually paid under federal law. For hourly employees, five- to 20-minute breaks are generally compensable, Salka noted. “If you let employees do other things during short breaks, such as go on Facebook, and pay them, you should also pay for expressing milk.” This is probably the trickiest area. Organizations need to be careful here and should consult a lawyer about whether the break time is paid or unpaid, Salka advised.  

Exceptions and Enforcement

The requirement does not apply to employees who are excluded from the Fair Labor Standard Act’s overtime provision, including those who fall within that law’s executive, administrative, professional or “outside salesman” exemption.

There is also an exception for employers with fewer than 50 workers if “undue hardship” will result from providing the breaks, but this is a high standard that will likely be difficult to prove. “I wouldn’t bank on undue hardship,” Salka cautioned.

It is not clear if a private right of action is available under the law,and it’s better for employers not to find out,” Salka said. So far, the DOL has been the law’s enforcer. In the majority of cases where the department has done an investigation, it has found a violation, he noted.

Does Not Pre-empt State Laws

The FLSA requirement of break time for nursing mothers to express breast milk does not pre-empt state laws that provide greater protections to employees, Salka said. Some state laws require compensated break time, break time for exempt employees or break time beyond one year after a child’s birth. 

According to the National Conference of State Legislatures, 24 states, the District of Columbia and Puerto Rico have laws related to breast-feeding in the workplace. The states with such requirements are Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming.

Emphasis on Cooperation

The most important thing is that the government is stressing cooperation between businesses and workers, Salka said. “They want employers and employees to communicate, and they want employers to be flexible. When asked for a reasonable break time and a reasonable place, employers should do their best to comply with the law.”

Although enough information isn’t available yet to answer the “nitty-gritty” questions, “we have to go with the spirit of what we want to accomplish,” Salka said. “We want to keep women from having to choose between their livelihood and taking care of newborn children.”

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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