News of the health care reform legislation has spread far and wide in the past few months. Little press has, however, been given to those provisions that are only tangentially related to health care. One such provision of the Health Care Reform Law amends the Fair Labor Standards Act ("FLSA") and imposes significant, affirmative obligations on employers of nursing mothers. This provision will be codified at 29 U.S.C. § 207(r).
Affirmative Obligations
The amendments impose two primary obligations on employers of nursing mothers:
Regarding the break time obligations, the FLSA amendment specifies that employers need not pay employees for the break time used to express milk. However, employers must provide nursing mothers with the same amount of paid break time provided to other employees. For example, if non-exempt employees receive a paid 15 minute break each morning, and a nursing mother takes 25 minutes to express milk, the Company must pay the nursing mother for 15 of the 25 minutes.
The amendment does not define what constitutes "reasonable" break time. Future regulations may provide some guidance on this front. For now, we suggest allowing the employee to take whatever time needed for this purpose and address the issue if it appears that the employee is taking excessive breaks. As a frame of reference, lactation experts advise new mothers to nurse infants every two to three hours. See, e.g. La Leche League International's advice on nursing schedules, found at http://www.llli.org/FAQ/schedule.html. Although this law covers the expression of milk, rather than actual nursing in the workplace, we can assume employees expressing milk at work would also take breaks on a similar two-to-three-hour schedule.
The location provided for nursing mothers must be private and free from intrusion. If an employee already has an existing office, employers can meet their obligations by installing a simple lock or latch on the employee's door. For employees without their own offices, employers should provide a common, private office that can serve as a lactation room. Such room need not be large, but should be able to fit a chair and some type of desk surface. As a practical matter, the room should have an electrical outlet. Again, such a room should have a lock or latch.
Scope of Coverage
The new FLSA provision appears to cover more employers than are covered under other provisions of the FLSA. While other FLSA provisions include language specifying applicability only to employees engaged in interstate commerce or employees of enterprises engaged in interstate commerce, the new FLSA provision regarding lactation accommodations contains no such limiting language.
The new provision does specify, however, that employers with less than 50 employees are not required to follow the lactation accommodation requirements if doing so would cause an "undue hardship" on the Company. Beyond this limitation, the language of the statute appears to apply to all employers, and a conservative approach would be to abide by the requirements, even if your business is not subject to the other provisions of the FLSA.
Implementation Issues
The FLSA lactation accommodation amendment is most pressing for employers who currently have new mothers or expectant mothers in their workplace. Employers should inform their employees of the accommodations available. This can be done on a case by case basis by informing expectant mothers of the accommodation at the time they inform the Company of their pregnancy. Alternatively, Employers can send memos or revise handbook language to state that the Company now offers certain accommodations for nursing mothers and that anyone who might need such an accommodation should contact Human Resources for more information.
Fraser Stryker is a leader in labor and employment law. For additional questions regarding the FLSA or other employment issues, contact Kathryn A. Dittrick or a member of the Firm's Labor & Employment Practice Group.
This article is provided by Fraser Stryker for general informational purposes and is not intended to be and should not be construed as legal advice on any specific facts or circumstances.
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