Health Care Reform: Nursing Mothers Act - Summer 2010

HEALTH CARE REFORM

NEW REQUIREMENTS FOR NURSING MOTHERS

Since 1999, employers in Tennessee have been required to provide female employees with nursing infants a reasonable unpaid break to allow them to express breast milk while at work. In this regard, employers are required to “make reasonable efforts” to provide a location, other than a toilet stall, for that purpose. In light of existing Tennessee law, one would think that the newly enacted provisions in the Patient Protection and Affordable Care Act relating to nursing mothers would be easy to implement. Think again.

Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to include significant new requirements for employers regarding nursing mothers at work. The requirements are as follows:

An employer must provide reasonable break time for nursing mothers.

The new federal provisions require “a reasonable break time for an employee to express breast milk… for 1 year after the child’s birth each time such employee has a need to express the milk.” Although Tennessee law already requires that a reasonable break be given to express milk, it only required it for the employee’s infant child. Further, Tennessee law stated that, if possible, the break time should run concurrently with any break time already provided and should not unduly disrupt the employer’s operations.

Employers must now allow reasonable breaks for up to 1 year after the child’s birth every time the mother’s states that she needs to express milk. There is no guidance provided regarding what is “reasonable” and in many cases reasonableness may depend on the varying needs of the nursing mother. It appears that the number and duration of such breaks will be dictated by the frequency and amount of time the mother subjectively claims to need to express milk. Further, when you add travel time to the selected location and sanitization and storage of equipment, the length of the necessary break is extended.

A private place other than a bathroom must be provided for the breaks.

The new law requires that the employer provide a private place where the employee is shielded from view and free from intrusion from coworkers and the public. Under no circumstances can the selected location be a bathroom. Depending on the nature of an employer’s business, finding an appropriate location may be difficult and may actually require the employer to construct a new area. For a larger employer, multiple locations may be necessary. Although

there is an undue hardship exemption for employers with fewer than 50 employees, which will be discussed below, employers should not assume that the exemption applies just because they may have to expend money to comply.

Compensation during breaks is not required.

Tennessee and federal law treat this issue similarly. An employer is not required to compensate an employee who takes reasonable break times to express milk. Nevertheless, employers should be cautious when docking the pay of employees who take such breaks. Under current Fair Labor Standards Act provisions, short breaks taken by employees (usually lasting about 5 to 20 minutes) are considered as compensable work time for which an employee must be paid. Therefore, administration of these break times with an eye toward making them unpaid will impose more administrative timekeeping responsibilities on employers.

An “undue hardship” exemption exists for small employers.

Employers with fewer than 50 employees are not required to comply with this new provision if providing reasonable break time or a private, shielded place for nursing mothers 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. Note that this exemption is not automatic and the burden of proof will fall on the employer.

This new federal law is effective immediately. Therefore, employers should begin considering their options with regard to locations for their nursing employees to express breast milk and with regard to administration of the new requirements of the amendments as soon as possible.