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New Amendment to the FLSA: Break Periods for Nursing Mothers

Hidden in the recently passed and lengthy health care reform law is a new amendment to the Fair Labor Standards Act (FLSA). This amendment, Section 4207 of the Patient Protection and Affordable Care Act (PPACA), is being referred to as the “Nursing Mother Amendment.”

The Nursing Mother Amendment went into effect immediately upon passage of PPACA on March 23, 2010. The Amendment applies to all employers. However, small employers (those with less than 50 employees) do not have to comply if they can establish that complying would cause an undue hardship. The “undue hardship” standard is a relatively high one and basically the same as the ADA undue hardship standard. Even small employers may have difficulty meeting it.

The Amendment has two basic requirements. First, it requires employers to provide breaks “from work time” for female employees, who are nursing their newborns, to express breast milk. The employee is entitled to take such breaks each time one is needed. Each break has to be reasonable in duration. The breaks may be taken until the child turns age one. An employer does not have to pay for the time spent on these breaks, even if the employee is exempt. Exempt status will not be affected even if the employer elects not to pay an exempt employee for the breaks.

Second, the Amendment requires the employer to provide a private place for the employee to express milk, other than a bathroom. The location must be shielded from view and free from intrusion by others.

If a state law provides greater rights to the employee than the new Amendment, the employer must comply with both laws. This basically means the employee gets the “best of both worlds.”

The Nursing Mother Amendment is very short. But for what appears to be a relatively simple law on the surface, it poses a number of implementation challenges. The Wage and Hour Division of the Department of Labor is currently evaluating the Amendment. It may consider issuing guidance or proposed regulations, but no decision or projected date for doing so has yet been determined.

In the meantime, employers should adopt their own policies or internal guidance, as well as notify supervisors of the new requirements. Just as most employers require employees to contact the Human Resources department to request FMLA leave and ADA accommodations, employers should also have such a centralized coordinator to handle requests for nursing mother breaks.

In developing a policy, the following issues need to be addressed by employers:

  1. Can we require a medical certification to verify that the employee is actually nursing? The Amendment is silent on this issue. However, it is likely that an employer will be able to require reasonable certification at the outset. It is questionable whether subsequent recertifications would be permitted, except perhaps if the employer has information that casts reasonable doubt on the employee’s proffered reason for taking a break or the breaks indicate a pattern of excessiveness.
  2. Can we require an employee to use her normal breaks as nursing breaks or can we require that normal breaks be taken back-to-back with nursing breaks? Although the Amendment’s language on this point is not particularly clear, it appears that an employer may not be able to force an employee to forego normal breaks and to use them instead as part of her nursing breaks. The Amendment requires that the breaks be breaks “from work time.” On the other hand, it appears that an employer could require that regular breaks be taken back-to-back with nursing breaks. Instead of the employee being gone from her work station twice (once for a regular break and then again for a nursing break), she would only be gone once. Such a practice would help reduce the disruption that could occur when the breaks are taken.
  3. How will we track the break time to ensure it is not paid by our payroll system? The time-keeping aspects associated with the Amendment will be particularly challenging. First, the employer will need to determine if it will dock the pay of exempt employees. If so, the break time will need to be tracked so that appropriate deductions from pay are made. Second, and regardless of whether or not an employer requires regular breaks to be taken back-to-back with nursing breaks, the breaks will need to be coded separately in the time-keeping system so that the system can distinguish between the two types of breaks.
  4. How can we prevent abuse — an employee taking breaks that are unreasonable in frequency or duration or for a purpose other than expressing milk? The Amendment provides no guidance for ensuring that an employee does not misuse the rights granted by it. However, nursing breaks are “unpaid” and will affect the employee’s overall earnings. It is possible that the unpaid nature of the breaks will serve as a deterrent to abuse. Otherwise, the employer will probably need fairly solid proof that the employee is fraudulently using the breaks before it takes any adverse action (similar to FMLA’s “fraudulent use” provisions).
  5. What if we have no private place that can be used for nursing breaks? This issue could arise in work locations that are small (e.g., a large national employer with numerous small retail outlets throughout the country) or if the employer leases office space in a building owned and controlled by someone else. If it is not possible to provide a separate private space, the employer should consider complying to the extent possible. For example, the employer might allow an employee to use a manager’s enclosed office or provide the bathroom as an alternative (including installing a lock and placing a comfortable chair in it). Or, the employer might allow the employee to telecommute until she stops nursing the child. If the employer rents its space, the employer should contact the landlord to determine what options are available. At lease renewal time, the employer should make sure this issue is covered in the lease or that the landlord provides adequate nursing mother space for all tenants.
  6. What obligations do we have if the employee travels as part of her job duties to locations not controlled by us? The Amendment does not address this issue at all. It is possible that some nursing mothers may have to travel on business either locally or overnight. In such cases, the employer should investigate the possible options at the other sites and initiate discussions with those that control those sites. Alternatively, the employer may have to temporarily consider reducing or eliminating the employee’s travel requirements until the employee stops nursing her child.

The new Amendment will be enforced by the DOL’s Wage and Hour Division. Since it is an amendment to the FLSA, the FLSA “monetary” remedies will apply. Those remedies are intended to ensure that an employee is “paid” appropriate wages and overtime. But, nursing mother breaks are “unpaid” breaks. Consequently, a female employee who is denied such “unpaid” breaks would normally have no monetary damages. In fact, she would earn more if she did not take the breaks at all. At first blush, the Amendment seems to be a law with no realistic remedy. However, failure to provide the breaks could possibly force the employee to take a leave of absence in order to nurse the child, and the employee could claim that her monetary damages are the wages she would have earned had she been able to work and able to take her nursing breaks in the workplace.

If you have any questions about the Amendment or would like assistance in developing a policy, please contact:

Sue Willman swillman@spencerfane.com (816) 292-8162 Dave Wing dwing@spencerfane.com (913) 327-5143Laura Pabst lpabst@spencerfane.com (816) 292-8876