Legislation

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New Amendment to Fair Labor Standards Act
Requires Breaks for Nursing Mothers
March 2010

Did you know that the federal healthcare reform bill that was signed into law on March 23, 2010, also amended the Fair Labor Standards Act (FLSA) – the federal law normally covering minimum wages and overtime? That’s right.

Quietly included in the healthcare law was a change to the FLSA that now requires employers to provide reasonable break time and a private place – other than a bathroom – for a female employee to express breast milk after giving birth to a child. Surprised? Well, here’s what you need to know.

Section 4207 of the Patient Protection and Affordable Care Act (the healthcare law) amended Section 7 of the FLSA to add the following five requirements for employers regarding nursing mothers at work:

(1) An employer must provide reasonable break time for nursing mothers. While there is nothing in Section 4207 that explicitly defines how often “reasonable” breaks must be provided or how much time a break should be, the law does indicate that the breaks should be long enough “for an employee to express milk” and should be provided “each time such employee has need to express the milk.” Employees may take these breaks until the nursing child is one year old.

(2) A private place other than a bathroom must be provided for the breaks. Section 4207 requires that an employer provide a private place where nursing employees can go to express milk. The place cannot be a bathroom and must be a place that is “shielded from view and free from intrusion from coworkers and the public.”

(3) Compensation during the breaks is not required. Under the new law an employer is not required to compensate an employee receiving reasonable break times for expressing milk.

(4) An “undue hardship” exemption exists for small employers. An employer with less than 50 employees is not required to comply with this new provision if providing reasonable break time or a private, shielded place for nursing mothers would impose an “undue hardship” by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

(5) State laws providing greater protections to nursing mothers still apply. If a state’s laws provide greater protections to employees than the protections provided under Section 4207, then employers in those states must still adhere to the state’s more expansive requirements. For example, despite the passing of Section 4207, employers in Oregon must continue to follow state law that allows nursing mothers breaks until their child is 18 months old and, if the breaks are not compensated, they must be allowed the opportunity to make up the work time missed by arriving early or staying later at work.

Because Section 4207 took effect on March 23, 2010, employers covered by the FLSA who are not in a state (like Oregon and 16 others plus the District of Columbia) that already provides protections for nursing mothers must take immediate action to revise practices and policies to ensure compliance with the law. These employers should (1) identify private places to serve as appropriate locations for nursing mothers, (2) review and amend any break policies, breast feeding policies and employee handbooks to include reasonable breaks for nursing mothers, and (3) train supervisors and managers about changes to the break policy. Since lawsuits under the FLSA have been a huge growth area of employment litigation over the past few years, and since the FLSA allows for potential individual liability (along with corporate liability) for violations, it is critical that the message about this new provision be quickly and properly spread to all management personnel.

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Thanks to Our Legislative Speaker!

Thanks Representative Kagen for visiting Mid-Day Women's Alliance on Feb. 17, 2010 and giving us an update on current legislation and priorities for women and families.

Senate Bill 20 Signed into Law on June 8, 2009! 

Action Items

ITEM 1:    Support initiatives to bring about equality for women in all areas of employment including achieving pay equity and the elimination of sex discrimination.

ITEM 2:    Support the research, funding and access to programs affecting women’s health such as reproductive freedom, equitable insurance coverage, and affordable dependent care.

ITEM 3:    Support and encourage equitable educational opportunities at all levels and in all areas of study.

ITEM 4:    Support initiatives to end domestic violence and all other acts of violence against women.

Wisconsin Women's Alliance will support other issues of importance that promote its goals and objectives.