The new 2010 health care law, formally known as the Patient Protection and Affordable Care Act, will affect employers in a variety of ways in the coming years. One provision, which received virtually no attention during the months before passage of the new law, will surprise many employers now.
Section 4207 of the new law amends section 7 of the Fair Labor Standards Act (the federal law on minimum wages and overtime entitlement) to mandate now that employers provide “reasonable break time” for a mother to “express breast milk for her nursing child” for up to one year after the child’s birth. Importantly, the break time for this purpose does not have to be paid (unless applicable state law requires), but we expect that many employers will not want to undertake the effort to police employee time in this activity.
The FLSA amendment also requires employers to provide mothers a suitable place other than a bathroom for the purpose of expressing breast milk. The designated place, appropriately, must be private, shielded from view, and free from intrusion by others in the workplace.
The new law applies to all employers subject to the FLSA. However, an employer with less than fifty employees may side-step compliance if these requirements impose an undue hardship on the employer. Presumably, it will be the employer’s burden to show undue hardship by demonstrating significant difficulty or expense.