NURSING MOTHERS GAIN PROTECTION
UNDER FEDERAL HEALTHCARE LAW
Nursing mothers who work for larger companies (50+ employees) are afforded new protections under the federal heath care law. The Patient Protection and Affordable Care Act amends the Fair Labor Standards Act
to require these larger employers to provide nursing mothers
"reasonable break time" to express breast milk and a private
comfortable place to do so. California
lawmakers enacted a similar lactation accommodation statute back in
2001. However, the new federal law must be followed to the extent it
provides nursing moms with greater protection. The
new law exempts employers who have fewer than 50 employees where such
smaller employers can establish that meeting the new federal
requirement imposes an "undue hardship" on the business.
What does the new law require?
The
new law requires employers to provide "reasonable break time" to a
nursing mother each time she needs to express her breast milk. This
break must be offered throughout the first year of the baby's life. Since
California's lactation accommodation requirement does not contain a one
year limit, California employers (and out-of-state employers employing
employees in California) must allow the break for so long as the employee is still nursing her new baby.
The statute does not define what constitutes "reasonable break time" and the U.S. Department of Labor
hasn't done so either. Presumably, an employer will be in compliance
where the employer permits nursing moms to use their established break
time to express breast milk. However, where the break time
requested does not coincide with established break times, the employer
must nevertheless offer the accommodation (time off), though the time
off for this purpose need not be paid. Must employers provide a private location for nursing mothers to express their breast milk?
Yes. In
a significant departure from existing lactation accommodation law, the
new federal law requires employers to actually provide "a place, other
than a bathroom, that is shielded from view and free from intrusion
from co-workers and the public." This is in
marked contrast with California's existing requirement that employers
make "reasonable efforts" to find such a location. The
only exception is for smaller employers (those with fewer than 50
employees) where the business can establish that compliance would
impose an "undue hardship". Congress defined
the term undue hardship as a set of circumstances causing "significant
difficulty or expense when considered in relation to the size,
financial resources, nature, or structure" of the business. This is a difficult standard to meet. Businesses
wishing to take advantage of this exception must be prepared to prove
that they cannot afford to do so. A business owner's
unsubstantiated assertion to that effect will not be enough. Do employers have to pay nursing mothers for the time spent on this break?
It depends on when the break is taken. State law obligates an employer to allow an employee two paid ten minute rest breaks in a typical eight hour shift. If
the employee can express her breast milk during her two state mandated
rest periods, then the break must be paid. If the employee needs
additional time, the break must be allowed, but the time need not be
paid. Getting Ready for Compliance
• If
you employ 50 or more employees, find a suitable location as near as
possible to the employees' work location. It must be a private
location, other than a bathroom, shielded from view and free from
intrusion from co-workers and the public. At
a minimum, outfit the area with a door lock and consider a sign on the
door that says "private" or words to that effect. Also, provide a
comfortable place to sit and be sure that there are some refrigeration
facilities available for the employee to store the breast milk. • If
you have fewer than 50 employees, try to do the same. If you conclude
that the business would incur an undue hardship with full compliance,
invest now in a consultation with an employment law expert who can
assist you in assessing your undue hardship defense. • Amend your employee handbook or policy manual to identify this benefit.
• Train all supervisors on the requirements of the law and new company policy. Too
often, the supervisors will unwittingly undercut compliance by making
statements to employees which are at odds with the law and company
policy. Your contact at the Firm is ready to assist you if you have any questions about this topic.
For more information, call us today at (818) 508-3700,
or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
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500 N. Brand Blvd.
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Glendale, CA
91203-9946
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New York, NY
10028
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The Management Side
Employment and Labor
Law Firm for Business
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