The recent health care legislation ("Patient Protection and Affordable Care Act of 2010") has numerous implications for employers--some of which are seemingly unrelated to health care reform. One of these areas is section 4207 of the legislation, which requires employers to provide "reasonable" breaks for nursing mothers and similarly requires employers to provide a suitable location to express milk. This room cannot be a restroom and must be "shielded from view and free form intrusion from co-workers and the public."
The legislation, which is effective immediately, raises several questions--chief among them what is a "reasonable" break. Presumably, this language means that a nursing mother who needs to express milk approximately every three hours to maintain her milk supply must be given an unpaid break each time she needs to express. One website, www.womenshealth.gov, the federal government's source for women's health information, suggests that each break may last about 15-20 minutes, along with time to get to and from the room and to store the milk. Because these breaks are to be unpaid (even though the FLSA provides that breaks of less than 20 minutes are generally compensable), the employer must also insure that any non-exempt workers are not working during the time they are nursing--or face possible overtime claims.
The legislation presumably applies to all employers, although employers with fewer than 50 employees who would experience "undue hardship" are exempt. The precise meaning of this term, as well as what constitutes an adequate room (or the number of adequate rooms) will likely be the subject of litigation in the coming months.
Finally, some states have laws that provide even more protection to nursing mothers (such as Arkansas, California, Georgia, Illinois, Indiana, Mississippi, New Mexico, Oklahoma, Tennessee, Texas, Virgina, and Washington). All employers should be familiar with the various local and state laws which may impact their planning.