Tuesday, April 20, 2010

New Federal Mandate for Employers: Lactation Rights for Mothers

On March 29, I blogged about the workplace lactation and breast pumping rights, amending the FLSA, contained in the Patient Protection and Affordable Care Act (“PPACA”).

Section 4207 of the PPACA, now codified as 29 U.S.C. § 207(r)(1)-(4) is the new federal mandate, requiring that employers provide reasonable break time for nursing mothers to express breast milk. The full text of the FLSA amendment is as follows:

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
‘‘(r)(1) An employer shall provide—
‘‘(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
‘‘(B) 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.
‘‘(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
‘‘(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements 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.
‘‘(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.’’

So, here are the important takeaways:

1. Employers must furnish a private place, not a bathroom.

2. The place must be shielded from view and shielded from intrusion by coworkers and the public.

3. The mandate applies to all nursing mothers of infants aged 12 months or less.

4. The federal mandate only mandates the right to express breast milk, and does not a right to breast feed the infant at work.

5. But, state law may mandate not only greater lactation rights, but also may mandate breastfeeding rights. So, be sure to check your state law. Connecticut, for example, since 2001 has by statute provided that employees can express breast milk or breastfeed on the job during meals or break periods, and that employers must make reasonable efforts to provide a place nearby the work area that is not a toilet stall to express milk in private as long as it would not impose an undue hardship on the operation of the employer. Conn. Stat. Gen. Stat. § 31-40w.

6. Employers of 50 or more employees have no exemptions; whereas employers of less than 50 employees are only exempt if they can meet the Section 207(r)(1)(3) “undue hardship” test.

7. The amendment contains no effective date.

8. The amendment contains no penalties for non-compliance, and no explicit private right of action.

9. Presumably, the Department of Labor will issue regulations or some form of guidance regarding, although the amendment does not require DOL to do so.

David S. Fortney, Esq. of Fortney Scott in D.C., recently blogged on the amendment, posing the following questions confronting employers:

• Are the breaks to be counted towards hours worked that must be compensated? Short breaks running from 5 to 20 minutes generally are counted as hours worked under the FLSA regulations (29 CFR § 785.18) and subject to compensation for non-exempt employees. The amendment states that the employer shall not be required to compensate an employee receiving “reasonable” break time. Mr. Fortney asks whether “reasonable” means breaks of 20 minutes or less, or is this a different standard. The DOL regulation reads as follows:

“Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.”

• Will travel time between the work location and the private location for expressing milk be compensable?

• For employers with fewer than 50 employees, what constitutes the “undue hardship” that would qualify for the exemption? Note that the exemption is not automatic, but instead only available if employers with fewer than 50 employees can meet the “undue hardship” requirement.

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