Employers need to provide nursing mothers with a private place and break time to express breast milk. The new requirement is an amendment to the Fair Labor Standards Act (FLSA) included in the Patient Protection and Affordable Care Act, signed into law by President Obama on March 23, 2010.

A new section added to the FLSA provides for the following two requirements for employers of nursing mothers:

(1) Employers must provide “a reasonable break time” for an employee to express breast milk for a nursing child for one year after the child’s birth each time the employee has the need to express milk.

(2) Employers must provide a place, other than a bathroom, that is shielded from view and intrusion by the public and coworkers where the employee can express breast milk.

The new law does not require employers to compensate an employee for the breaks, despite the fact that many rest periods or breaks of short duration are treated as “working time” by employers.

An employer that employs fewer than 50 employees may be exempt from the requirements if the law would impose an “undue hardship” on the employer. The law defines “undue hardship” as imposing on the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

Employers should be aware that many states already require breaks for nursing mothers, and existing state laws may have even more stringent requirements. The amendment to the FLSA specifically provides that it does not preempt state laws that provide greater protections to employees.

The U.S. Department of Labor in Washington, D.C., has not issued information yet on the new break requirements. District Offices have advised that they are awaiting guidance from the National Office, including whether regulations will be proposed.

The provisions are set forth in Section 4207 of the Patient Protection and Affordable Care Act, for which there is no stated effective date. Therefore, it appears that these requirements took effect upon the President’s signing the legislation on March 23.

Attorneys in Ballard Spahr’s Labor and Employment Group are prepared to answer your questions and to assist you in writing and reviewing policies to address the new requirements.