This month, Jon Vegosen briefs us on breaks in the workplace for nursing mothers.
GIVING NURSING MOMS A BREAK
On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (PPACA) in order to overhaul the U.S. health care system. The law includes numerous health-related provisions such as expanding Medicaid eligibility, subsidizing insurance premiums, and supporting medical research.
Employers should be aware that the PPACA also contains a key amendment to the Fair Labor Standards Act (FLSA) dealing with work breaks for nursing mothers. Effective immediately, employers must now provide nursing mothers reasonable unpaid break time to express milk, for a period of up to one year following a child’s birth.
The amendment neither defines how much time is “reasonable,” nor does it identify the frequency of the breaks.
Employers must also provide nursing mothers a location for the breaks, other than a bathroom, that is private and free from the intrusion of others.
An employer with fewer than 50 employees may be exempt from providing unpaid breaks for nursing mothers if the employer can show that complying with the law 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.”
At this time, the federal law does not define “undue hardship” and the Department of Labor has not yet issued any regulations or guidance on the new amendment. Nevertheless, employers, even those with fewer than 50 employees, should consider what changes, if any, they need to make to comply with law. Employers with fewer than 50 employees should consult with counsel to determine whether they might be exempt due to an “undue hardship.”
The new federal law makes clear that employers must comply with the FLSA or the applicable state law that is most favorable for the employees. Many states, including Illinois, have already enacted laws to protect nursing mothers in public and in the workplace.
For example, the Illinois Nursing Mothers in the Workplace Act requires, among other things, that private employers with five or more employees (exclusive of the employer’s parent, spouse, child or other members of the employer’s immediate family) “provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.” If possible, the break time must “run concurrently with any break time already provided to the employee.”
Under The Act, an employer is not required to provide break time if doing so would “unduly disrupt” the employer’s operations. An employer is required to “make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where an employee” can express her milk in privacy.
An employee’s own office, or an empty internal office or an empty external office with blinds or window shades, coupled with the ability of an employee to post a “do not disturb” on the door, should provide an appropriate location for expressing milk in privacy.
If an employer has not already done so, it would be wise to contact its legal counsel to prepare a policy for nursing mothers in its employee handbook.
Jon Vegosen is a founding member of Funkhouser Vegosen Liebman & Dunn Ltd. and has more than 33 years experience practicing law. He is nationally recognized for his work in labor and employment relations and is sought after as an author and spokesperson on labor and employment issues.
Tags: FLSA, Funkhouser Vegosen Liebman & Dunn, FVLD, health care, Jon Vegosen, nursing moms, PPACA, work breaks
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