The recent and massive health care reform bill, titled the Patient Protection and Affordable Care Act, was hotly debated and garnered much media attention prior to its passage. One provision of the Act, however, received none of the media spotlight, yet will have a significant impact on a number of employers. The Act amends Section 207 of the Federal Fair Labor Standards Act to now require employers to provide break times during the work day for nursing mothers to express breast milk. Specifically, Section 4207 of the Act, “Reasonable Break Time for Nursing Mothers,” states that an employer must provide a reasonable break time for an employee to express breast milk for her nursing child up to one year after the child’s birth every time such employee has a need to express milk.

The nursing mother break time requirement took affect immediately upon President Obama’s signing of the Act; however, the rules for enforcement have not yet been put in place. The Department of Labor is in the process of developing regulations to implement this new nursing mother break time requirement.

The nursing mother break time requirement applies broadly to all employers covered by the Fair Labor Standards Act. Only an employer of less than 50 employees is potentially exempt, if such requirement 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. Based on the employment-related laws, it can be presumed that the burden will be on the employer to prove “undue hardship.” Employers with less than 50 employees are cautioned not to assume that they are exempt from the nursing mother break time requirement, but should consult with counsel regarding the applicability of the undue hardship exemption to their current situation.

Under the Act, an employer is required to provide nursing mothers with a location, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public in which to express breast milk. The Act does not require an employer to make major changes to the building environment, but rather provide employees with a designated private space in which to express milk. It is expected that such private space will be required to have at a minimum a locking door, electrical outlets, and be located in close proximity to a bathroom, as well as the employee’s work space.

The Act does not provide any guidance as to what constitutes a “reasonable” break time, nor does it set forth any limit to the number of breaks that can be taken during the work day. As the provision was introduced into the Act by Oregon Senator Jeff Merkley and appears to be loosely modeled after Oregon’s current state law, it is possible that the Department of Labor will look to Oregon’s existing state statute for guidance as to the interpretation of “reasonable” break time. Oregon requires employers to provide employees with a thirty minute break time to express milk.

Pat McGrath