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Health Care Law Requires Unpaid Breaks For Nursing Mothers

Volume 9, Issue 3
April 16, 2010

The new Patient Protection and Affordable Health Care Act amends the Fair Labor Standards Act to require employers to furnish "reasonable" breaks to nursing mothers for the purpose of expressing milk. This requirement went into effect with the signing of the Act on March 23, 2010. While regulations may eventually be issued by the Department of Labor to flush out the finer points of this new law, we presently know that it applies to an employee nursing her child for up to one year after the child's birth. The law's requirements are two fold: it requires an employer to provide (1) reasonable breaks to allow the employee to express milk for her nursing child each time the employee "has a need to express the milk"; and (2) a place the employee can use to express milk, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public. The new law does not require an employer to provide paid breaks for expressing milk. Clearly, if a nursing employee uses the paid breaks she is entitled to under Nevada law or an employer's policies for the purpose of expressing milk, she should be paid for the time. However, time used beyond the requirements of Nevada law and/or the employer's policies can be classified as an unpaid break. In other words, if the nursing employee needs more time to express milk than allotted to her under your policies for paid breaks, that time can be unpaid (provided the employee performs no work during the break). The law does provide an exception for small employers - those with less than 50 employees - if the employer can prove that the law's requirements impose an undue hardship by causing "significant difficulty or expense" when considered in relation to "the size, financial resources, nature, or structure of the employer's business." Small employers are advised to consult with counsel before determining whether compliance with this new law causes an undue hardship. This change to the FLSA is located in Section 4207 of Public Law 111-148, the Patient Protection and Affordable Health Care Act.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.