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More ‘Obamacare’ Fallout: Recent Supreme Court decision upholds 'reasonable break time for nursing mothers' rule

The Supreme Court’s recent decision to uphold the Patient Protection and Affordable Care Act created a host of new questions for employers, but clarified their obligations on at least one matter. In upholding the Act, the court ensured that the recently enacted “reasonable break time for nursing mothers” rule will remain effective. The rule, which Congress enacted as part of the Act in 2010, requires employers to provide certain benefits to nursing mothers who need to express breast milk at work. Specifically, most employers must provide nursing mothers with a secure, private location and reasonable breaks when they need to express milk.

Most mothers are entitled to these benefits for up to one year after childbirth. Although the rule creates new burdens and obligations for employers, the Department of Labor has fortunately provided guidance on several frequently asked questions, including the following:

What constitutes a secure and private location?

Under the rule, most nursing mothers are entitled to take nursing breaks in a secure location that is shielded from public view, free from intrusion from co-workers and the public, and located somewhere other than a restroom. The Department of Labor has opined that, in certain circumstances, you may be able to create such a location by using partitions and curtains, and by taking steps to ensure the location is private and undisturbed. Additionally, the Department of Labor has noted that the location should include a place for the nursing mother to sit and features to assist her with pumping equipment, including an electrical outlet and a flat surface upon which to place a pump.

How long is a “reasonable” break?

According to the Department of Labor, a nursing mother is entitled to break for as long as is reasonably necessary to express milk. This time will vary depending on several factors, including the mother’s job (for example, whether she has to remove equipment before she can take her break) and the distance of her workstation from the break location. Generally, the Department of Labor believes it is reasonable for a nursing mother to take one to three breaks, of 10 to 30 minutes each, per eight-hour shift. Fortunately, you are not required to pay the employee for these breaks.

Can employers obtain an exemption if it is too difficult to comply?

Unfortunately, the rule will apply to almost every employer. If you have fewer than 50 employees, you can attempt to invoke a hardship exemption; however, doing so is risky. The Department of Labor will not grant hardship exemptions prospectively, so you would have to wait until an employee filed a lawsuit before you could attempt to invoke the exemption. If you believe you may be entitled to an exemption, discuss the issue with a knowledgeable attorney or human resources official, and weigh your options. If you decide to attempt to utilize the exemption, you should thoroughly document your attempts to comply with the rule and the resulting difficulty and expense. This documentation will be essential evidence in the event an employee files suit.

The Department of Labor’s guidance should help you navigate the myriad issues involved in complying with this potentially burdensome statute. When you are assessing your strategy for complying with the recently upheld Act, you should make sure that your policy for providing this “reasonable break time” is already in place, communicated to your supervisors and distributed to your employees. 




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