E-Alerts

Nursing Mother Amendment To FLSA Creates Immediate Obligation For Employers

The sweeping health care legislation that President Obama recently signed into law contains a short but significant amendment to the Fair Labor Standards Act (“FLSA”) requiring all covered employers to provide special accommodations to nursing mothers.  This obligation is effective immediately.

Specifically, the new Patient Protection and Affordable Care Act amends the FLSA to require employers to provide the following:

• 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 the employee has a need to do so; and
• A place, other than a bathroom, that is shielded from view and free from intrusion for the purpose of expressing breast milk.

The new law contains numerous uncertainties as to which there is presently no guidance.  For instance, it neither limits the number of breaks that may be taken nor specifies the permissible duration of such breaks.  Additionally, while the statute describes the breaks as unpaid, this potentially conflicts with existing FLSA regulations, which generally require pay for breaks of short duration.  In fact, a technical reading of the amendment suggests that this new benefit applies only to non-exempt employees, but we doubt that this was intended, as there appears to be no principled basis for this.

Another area of uncertainty is the statute’s “undue hardship” exemption.  While all covered employers are subject to this FLSA amendment, those with fewer than 50 employees are exempt if compliance would “pose 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.”  The statute, however, does not elaborate on when (or how) this standard will and will not be met.

This new federal obligation does not preempt more protective state laws.  Accordingly, employers with operations in the 24 states that already have laws relating to breastfeeding in the workplace, as well as in the District of Columbia, which also has such a law, should continue to comply with any state-law provisions that are more restrictive.

The states where such laws are already on the books 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.

We recommend that all covered employers immediately take the following steps to ensure compliance with this FLSA amendment:

• Prepare a lactation room for the benefit of nursing mothers who would like to express breast milk during the workday (this should be a private, clean room that is not situated within a restroom and that, at a minimum, has an electrical outlet to accommodate a breast pump, a comfortable chair, and a lock on the door);
• Implement a new policy to inform employees of this new benefit; and
• Train managers and supervisors to field questions about this new benefit, to ensure that they handle the topic with appropriate confidentiality and sensitivity, and to ensure that employees are not retaliated against for exercising this new federal workplace right.

In light of the numerous uncertainties in this new FLSA amendment, as well as the potential state-law overlay, employers are encouraged to confer with counsel in determining how best to comply.

Please do not hesitate to contact us if you have any questions about the new FLSA amendment or otherwise would like compliance assistance.