A lot of press has been generated by recent health care reform efforts and passage of the health care bill known as the “Patient Protection and Affordable Care Act.” (PPACA). What has not been getting a lot of press, however, is the fact that the PPACA didn’t just regulate health care in the traditional sense. It also has resulted in amendments to other laws — including labor laws, like the Fair Labor Standards Act (FLSA). And there’s one change in that regard that will impact many employers quickly.

The Fair Labor Standards Act addresses wage and hour issues at the federal level. One section of the FLSA pertaining to breaks — Section 7 — has been amended as a result of the PPACA to require employers to provide (1) reasonable breaks to allow nursing mothers to express breast milk for their babies for one year after the child’s birth and (2) a private place other than a restroom for the expression of the breast milk – a “lactation station”, as it were. The “lactation station” may presumably be used for other purposes so long as it is:

  • sanitary
  • shielded from view
  • free from intrusion by coworkers or the public.

There is a hardship exception for employers with fewer than 50 employees. If these small employers can establish an “undue hardship” — meaning “significant difficulty or expense” — then the employer may be exempt from the requirement.

The new law also provides that employers do not have to compensate employees for the time spent taking lactation breaks. In some cases, this will be a departure from the normal FLSA rule that breaks of less than 20 minutes must be counted as compensable time. Bear in mind, however, if you are in a jurisdiction where the rule is otherwise, you must apply your state wage and hour law instead.

Although the amendment to the FLSA took effect on March 23, 2010 when the PPACA was signed into law, it probably will be some time before the DOL issues any regulations in this regard. The term “reasonable” has not been defined, and the duration of the break will vary from mother to mother. Under the Amendment, employees are permitted to take such breaks “each time such employee has need.”

About half the states already have some form of a lactation break statute in place. In these states, the more generous of the two (the federal and the state law) controls. Because West Virginia does not have a statute pertaining specifically to lactation breaks, the amendment to the FLSA dictated by the new health care law is something employers in that jurisdiction must take note of.

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