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Workplace Word Snell & Wilmer L.L.P.
August 2010

Federal Law Now Requires Employers to Provide Break Time for Nursing Mothers

One of the more overlooked components of the Patient Protection and Affordable Care Act (“PPACA”), signed into law on March 23, 2010, is the new requirement that employers provide break time for nursing mothers.  The PPACA amended Section 7 of the Fair Labor Standards Act (“FLSA”) to add this new requirement.

On July 15, 2010, the Department of Labor’s (“DOL”) Wage and Hour Division released a fact sheet providing guidelines as to how employers should implement this new law.

What does the new law require of employers?
Generally, the PPACA requires that employers provide a “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.”  The DOL’s fact sheet states that the frequency of breaks needed by an employee, as well as the duration of such breaks, will vary, and further states that employers must allow a “reasonable amount of break time to express milk as frequently as needed by the nursing mother.”

What type of location must an employer provide?
The law further states that employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  The DOL has stated that a bathroom, even a private one, is not a permissible location under the new law.  The space must also be “functional as a space for expressing milk.”  Employers are not required to designate a permanent location, but rather may use a temporary space or one made available when needed by a nursing mother.

Who is covered by the new law?
The new law applies only to employees who are not exempt from the FLSA’s overtime pay requirements.  It does not apply to exempt employees.
Employers with less than 50 employees are not covered by the new law if compliance with the provision would impose an “undue hardship,” which is measured by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure of the employer’s business.

Must employers compensate nursing mothers for break time?
No, employers need not compensate for this break time, although they certainly are free to do so if they choose.  However, if the employer already provides compensated break time to its employees, the employer must compensate a nursing mother who uses that break time in order to express milk.

State Laws
Be aware that the PPACA does not preempt state laws that provide greater protections to employees.  If your state has such a law (and currently there are 24 states that have laws governing breastfeeding in the workplace, including California and Colorado), check the law’s requirements carefully to ensure they do not provide greater protection than the new law.

With the DOL’s issuance of this fact sheet, employers who fail to comply with the PPACA’s new requirements will have little excuse for their non-compliance.  Employers should act quickly to draft and implement policies in accordance with the new law.

If you have any questions about the subject of this article, you may contact one of the Snell & Wilmer attorneys listed above.

©2010 All rights reserved. The purpose of this newsletter is to provide our readers with information on current topics of general interest and nothing herein shall be construed to create, offer, or memorialize the existence of an attorney-client relationship. The articles should not be considered legal advice or opinion, because their content may not apply to the specific facts of a particular matter. Please contact a Snell & Wilmer attorney with any questions.
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