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The Patient Protection and Affordable Care Act of 2010, one of the key legislative pieces of health care reform, includes a section requiring employers to provide reasonable breaks to permit certain employees to express breast milk for their nursing children and to provide an appropriate place for them to do so (H.R. 3590, Section 4207).

These requirements apply absolutely to employers of 50 or more employees and apply to smaller employers unless the requirements impose an undue hardship causing the employer significant difficulty and expense.

The break time requirement applies for up to a year after the child’s birth, and breaks must be provided each time the employee needs to express milk. While the employer is not obligated to compensate the employee during the break periods, existing Department of Labor regulations may limit the employer’s ability to exclude short (less than 20 minute) break periods from paid working time.

As a general guide, most nursing mothers will need two to three breaks during an eight-hour shift, lasting approximately 15 minutes, exclusive of the time it will take the employee to travel between her work station and the location provided for expressing milk. While the number of breaks and length may vary, a convenient location that is equipped with space to store and clean the equipment used to express milk will reduce the amount of break time that must be provided.

The location provided for expressing milk must be shielded from view and free from intrusion from coworkers and the public, and may not be a bathroom. The requirement to provide a place for expressing milk is not limited by the one-year-from-birth standard applied to breaks.

For employers employing less than 50 employees, the determination of undue hardship will take into consideration the size, financial resources, nature and structure of the employer’s business. The undue hardship assessment should be made with respect to the individual employee and location at issue. The undue hardship language in Section 4207 is virtually identical to that in the Americans with Disabilities Act (ADA), and it is likely that the DOL and courts will rely upon the body of law developed under the ADA for guidance.

Section 4207 amends the overtime provisions of the Fair Labor Standards Act (FLSA), and becomes 29 U.S.C. Section 207(r). Thus, it is necessary to look to the FLSA to determine which employers and employees are covered.

The FLSA’s definition of employer is very broad. Unlike the Family and Medical Leave Act, Section 4207 does not state whether the 50 employees must be employed in the same geographic area. Section 4207 also does not use the “establishment” language that appears elsewhere in the FLSA to denote a site of employment.

Although an employer that has one business location with 49 or fewer employers would not be subject to the unqualified obligation established in this provision, strict application of the statutory language could result in the unqualified obligation being applicable to, for example, an employer that operations 25 separate locations with 2 employees each. The Department of Labor has the authority to issue regulations interpreting this section. It is possible that it will issue regulations clarifying how the 50-employee standard will be applied.

The employees covered do not include those whom Section 213 of the FLSA defines as exempt from Section 207’s overtime pay requirements. Employees exempted by Section 213 include salaried executive, administrative, professional and outside sales employees, exempt computer professionals and employees in a number of occupations that are specifically exempted. This includes certain employees engaged in the transport of goods or passengers, in fishing, agriculture or forestry, and employees working for certain seasonal establishments.

A significant number of states and territories already have laws that provide similar or greater rights to nursing mothers.¹ Section 4207 does not preempt state laws that provide greater rights (for example, covering exempt employees, imposing specific break periods, applying the absolute standard to smaller employers or requiring paid leave).

Employers should consult with counsel to determine which requirements apply to them and how to comply with these requirements. Section 4207 does not contain a specific effective date, so it is presumed to be effective from the date of enactment of H.R. 3590 (March 23, 2010).

For more information about this aspect of the health care reform legislation, please contact:

Jeanne M. Phelan

For more information on DLA Piper’s Health Care practice generally, please contact:

Senator Tom Daschle

Tom Boyd

Kimberly K. Egan

James P. Rathvon

Please read our other writings about the effect of the health care reforms on your business.

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