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BREAKS: PPACA requires reasonable break time, privacy for nursing mothers

Kentucky Employment Law Letter, Vol. 20, No. 9

The Patient Protection and Affordable Care Act (PPACA), which was signed into law by President Barack Obama on March 23, 2010, contains a provision amending the Fair Labor Standards Act (FLSA) to require employers to provide nursing mothers with reasonable break time when they need to express breast milk. This requirement operates against the backdrop of existing Kentucky law, which expressly permits nursing mothers to breastfeed in any public or private location. Read on to determine how the new law will affect your company. 

Both large and small employers may be covered 

The “reasonable break time” requirement is fairly straightforward. Covered employers are required to provide employees who need to express breast milk reasonable break time and an area to express the milk that is “shielded from public view” and “free from intrusion from coworkers and the public.” The only additional requirement for the location is that it may not be a bathroom. While the break time must be available whenever the employee needs to express milk, you are not required to compensate her for the break time. 

The reasonable break time requirement applies to all employers and is available to any female employee for up to one year after her child is born. The provision applies to employers with 50 or more total employees regardless of whether it creates a hardship.

Employers with fewer than 50 employees, however, are not required to comply with the reasonable break time provision if they can establish that it will create an “undue hardship.” Courts determining whether a hardship exists will consider the difficulty or expense for the employer in relation to its size, financial resources, nature, and business structure. Courts haven’t yet provided any examples of what specifically constitutes a hardship. 

Some classes of employees aren’t covered by the overtime provisions of the FLSA. The terms of the PPACA don’t address whether employers are required to provide break time to mothers in those exempt classes. Regulations addressing this issue are likely to be promulgated in the near future, but for now it’s prudent to provide reasonable break time to nursing mothers in all job classifications. 

How to comply with the requirement 

To comply with the new rule, you should first determine whether your company is covered. As we mentioned, employers with 50 or more employees are automatically covered, while employers with fewer than 50 workers may qualify for the undue-hardship exemption. If you believe your company qualifies for the exemption, you should begin to document your attempt to comply with the rule and the reasons you are unable to do so. 

Complying with the reasonable break time provision will require three steps. First, you will need to find an area suitable for breastfeeding. The ideal area is a small windowless office with a door that locks, a chair, and an electrical outlet (which may be necessary for breast pumps). Second, you will need to revise your employment policies to ensure they’re consistent with the provision. Third, you must train supervisors and other employees to comply with the new rule. It’s particularly important to advise your supervisors not to retaliate against any employee who asserts her rights under the PPACA. By taking those steps, you will be able to comply with the new requirement in a way that has a minimal impact on your operations. ✤ 

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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