Thursday, September 30, 2010

Mandatory Breaktime for Nursing Mothers at Work

As provisions of “Health Care Reform” take effect, employers and employees should pay attention. The legislation has far-reaching impact and can catch some by surprise who think it only regulates health insurers. There were two separate bills passed that comprise the “Health Care Reform” package: the Patient Protection and Affordable Care Act (PPACA) (full text) and the Health Care and Education Reform Act of 2010 (HCERA) (full text). (See a very comprehensive discussion of both on Wikipedia and a convenient collection of links to Congressional Record items related to both published by the GPO.)

This post focuses on one of the important but often overlooked changes that affect the workplace: mandatory break time for nursing mothers. The Department of Labor recently published Fact Sheet #73 to provide general information on this new requirement. In a nutshell, the new law provides that:

1. It is secondary to state laws if those laws are more generous in this area

2. It applies to “non-exempt” lactating employees only

3. “Reasonable break time” must be allowed for up to 1 year from child’s birth “each time” the employee needs to express breast milk

4. Employers must provide a place, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” and functionally suitable

5. The breaks can be uncompensated, except to the extent the covered employee uses otherwise compensated break time, but only if the employee is completely relieved of duty during the break

The provision went into effect immediately and applies to all employers. However, employers with less than 50 total employees, counting all locations together, who can show that compliance would impose an undue hardship, may be exempt. There are no detailed regulations or guidance on how to show undue hardship, but the statute’s definition of “undue hardship” is “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.” (29 U.S.C. 207(r)(3); PL 111-148, March 23, 2010) There also are no guidelines yet as to whether an employer must apply for confirmation of exemption in advance or rely on its own evidence in defense of an enforcement action.

The DOL expects to issue further guidance sometime in the future and hopefully will produce compliance assistance on this statute, per Fact Sheet 73. Employers and employees will benefit from more clarification. For example, is the PPACA’s requirement of an uncompensated break whenever the nursing mother needs it “more generous” than a state’s requirement that the time run concurrently with a compensated break “if possible?”

In the meantime, employers can look to resources and guidance from states that have had similar provisions for nursing mothers who return to work. The National Conference of State Legislatures has an updated survey of national and state Breastfeeding Laws. Susan Heathfield wrote a blog post, “Lactation Accommodation Policy,” that appears to pre-date the PPACA but provides guidance to employers drafting policies.

California already had a lactation accommodation law and is a rich resource for those looking for tested strategies and ways to avoid potential issues. The University of California-San Diego’s Lactation Accommodation policy is available online, for example.

Employers want their employees back at work happy, healthy and productive following maternity leave. Returning mothers who breastfeed need accommodation to be able to focus on work between pumping breaks. When these goals align, both win.

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