Unpaid Breastfeeding Breaks Now Mandated by FLSA Per the Patient Protection and Affordable Care Act

As some of you may recall from my August 27, 2009 post at Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore, the Ohio Supreme Court ruled that employers were not required to provide breaks to new lactating mothers. However, the Patient Protection and Affordable Care Act signed last week by President Obama changed that for Ohio and other employers subject to the FLSA. Among other things, the PPACA amends the FLSA to provide that employers must provide an unpaid break for mothers to express breast milk for one year after the birth of the child in a location (other than a restroom) that is shielded from view and intrusion by the public or coworkers. There is an exception for small employers (with fewer than 50 employees) who can show an undue hardship by the significant difficulty or expense of providing such beaks considering the employer’s size, financial resources, nature or structure.

There is no “official” website for the text of the PPACA yet, but the text of Section 4207 of the PPACA (as reflected by the Senate bill later passed by the House and signed by the President) provides as follows:

Section 4207. Reasonable Break Time for Nursing Mothers.

Section 7 of the Fair Labor Standards Act of 19389 (29 U.S.C. § 207) is amended by adding at the end of 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; 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.

A summary of the Public Law 111-148 is available on the Library of Congress website.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.