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How to comply with new lactation break and facility rules

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in Employee Benefits Program,Human Resources

by Brian S. Clarke and Julie Kerr Adams, Esqs., Littler, Mendelson, Charlotte

Hidden deep within the recently enacted health care reform legislation—officially known as the Patient Protection and Affordable Care Act—is a provision that garnered neither debate nor controversy in the media or the halls of Congress. The law amends the Fair Labor Standards Act (FLSA) to require large employers to provide lactation breaks and facilities for employees who are breastfeeding.

Many employers now must provide breaks to mothers who wish to express breast milk and a place to do so that is not a restroom.

The provision went into effect as soon as President Obama signed the law on March 23.

Which employers are covered?

Generally, all employers that are covered by the FLSA and employ 50 or more employees must comply with the amendment. Employers covered by the FLSA but with fewer than 50 employees are not required to provide the breaks “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.”

As a practical matter, that loophole means that many smaller employers may also have to comply.

The amendment doesn’t address how employers should count the 50 employees for purposes of relying on the “undue hardship” justification. For example, the statute does not indicate whether the 50 employees must be full time, part time, within a geographical region or employed for a minimum amount of time. Forthcoming Department of Labor regulations may clarify the employee-count issue.

The lactation section applies to all nonexempt employees. Employers may choose to provide lactation breaks to salaried exempt employees (as it is expected most employers will do). If you do so, do not make salary deductions for lactation breaks.

The breaks

The amendment requires employers to provide employees “reasonable break time” to express breast milk “each time” an employee needs to do so. The government hasn’t yet defined “reasonable break time.” The length and frequency of each employee’s lactation breaks could vary based on individual employee’s needs and the location and logistics of the space provided.

The law requires employers to provide breaks for up to one year after a child’s birth, which is consistent with the American Academy of Pediatrics’ recommendations on breastfeeding. Employers may choose to provide breaks for a longer period of time.

The amendment states that employers need not pay employees for lactation breaks. However, federal regulations regarding other rest breaks indicate that “rest periods of short duration, running from 5 minutes to about 20 minutes are common in the industry ... [and] must be counted as hours worked.”

The amendments require “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.”

There are a variety of solutions in providing a private location for mothers to express breast milk, including converting an unused office space to a permanent and designated “Mother’s Room.” The U.S. Department of Health and Human Services’ Easy Steps to Supporting Breastfeeding Employees resource guide urges employers to consider the following when allocating a private space:

  • A little-used existing office space or other room.
  • A clean, infrequently used closet or small storage area
  • A small corner of a room sectioned off with either permanent walls or portable partitions
  • A walled-off corner of a lounge adjacent to the women’s restroom.

Penalties for noncompliance

The law is unclear on any employer penalties for not providing the breaks or space. This amendment was originally part of the Breastfeeding Promotion Act of 2009, which is currently in committee, so the U.S. Department of Labor may look to that act to identify penalties.

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