Section 4207 of the newly enacted Patient Protection and Affordable Care Act (the Act) amends Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide unpaid “reasonable” breaks each time a nursing mother needs to express breast milk for up to one year after the birth of her child. A private space must be provided for these breaks.

The law leaves it up to the employer to determine limitations on the number or lengths of breaks which may prove to be a catch-22, putting the employer in violation of the existing DOL regulation requiring payment for rest breaks of short duration (15-20 minutes).

Adding further confusion to this amendment are the issues of managing pay for exempt vs. non-exempt positions and state laws regarding payment for breaks or protections for nursing mothers. As is always the case, the new FLSA amendment doesn’t pre-empt any state mandates providing greater protections for employees.

The private space cannot include a bathroom and must be away from view and free from the likelihood of intrusion. Although this is a requirement for all employers, businesses with less than 50 employees may be exempted if providing such a space would provide an undue hardship because of difficulty or expense when considering the financial resources, structure, or nature of the employer’s business.

FMLA is not affected by this action, but this could be the precursor to future expansion of parental leave rights related to the care of children beyond childbirth, adoption or the assumption of foster care.

As of the middle of April, there is no definitive effective date for this amendment. Until the DOL publishes instructive guidelines for the new program, HR and payroll should:

• review appropriate state laws,
• evaluate in-house policies either for revision or implementation, and
• seek counsel if an employee falls under the protection of this section of the Act.

Although no penalty has been published for non-compliance, it’s best to be prepared.