Breastfeeding Law under Health Reform (Preliminary Interpretations)

The Fair Labor Standard Act (FLSA) was amended by PPACA (Health Reform).  Basically, the amendment states that nursing mothers must be provided with a private space (not a bathroom) and unpaid break time in order to express breast milk for one year after the birth of their children.  Since this interpretation is preliminary the Department of Labor (DOL) doesn't have plans to issue regulations as of yet.  This is due in large part by the many factors that could impact mother's needs including work environments, schedules, and personal/individual needs.  However, the DOL could issue regulation at any time so HR should work with nursing mothers to settle on policy for accommodations and expectations of both the employer and employee.

Space for Expressing Milk

The space must at least have a place for the mother to sit and a flat surface in which to place the pump.  In addition, the space must have a door that locks (or a sign that designates that the space is in use) and windows must be covered.  Smaller employers may use partitions/screens to designate an area.  There doesn't appear to be any rulings that require the space to have a sink or refrigerator or other accommodations. 


Reasonable Break Time

According to the DOL, lactation breaks will last from 15-20 minutes, however, actual times may vary depending upon the speed of the pump, how long it takes to clean up, distance to a refrigerator/sink etc.  The number of breaks in a normal 8 hour shift will also vary depending upon how old the child is and if they are also eating solid food which would decrease the number of expressions needed.

Undue Hardship

According to the DOL, employers who have less than 50 employees will not have to comply with the law if it creates an "undue hardship" in difficulty or expense.  However, don't hang your hat on this because the employer needs to demonstrate that a hardship exists before the DOL will grant a waiver and they will sue employers on behalf of lactating mothers. 

Regardless of the size of your company, It may be a good idea to give some thought to having a stand-by breastfeeding space, just in case.

Thou Shalt Not Discriminate. Wait.......You Can For Now But...

Under Health Reform (PPACA) and effective on your company's first health insurance renewal after September 23, 2010, employers may not discriminate in favor of highly compensated employees.  However, this applies to health plans that have lost "grandfathered status" under the rules defined in the Health Reform Law (PPACA).  You may recall in previous posts that when an employer loses grandfathered status they are then subject to many rules under the Health Reform (PPACA), including not discriminating in favor of highly compensated employees.

 Your health plan will lose grandfathered status and become non-grandfathered if:

1. Employer significantly raises co-pays.  This is the greater of $5 or Medical inflation +15% 
2. Employer significantly raises deductibles.
3. Employer significantly lowers employer contributions. Can't decrease percentage by more than 5%
4. Employer Raises Co-Insurance
5. When PPACA first arrived employers couldn't change health plans, even if it was better coverage, without losing grandfathered status but this has since been rescinded.....probably because it didn't make any sense.

For the most part, it seems, many/most employers will eventually lose grandfathered status simply because it will become increasingly difficult to maintain current levels of coverage while maintaining their contribution levels. 

Therefore, under section 2716 of the Public Health Service Act (PHS) under the PPACA, it provides that a group health plan must satisfy the requirements of section 105(h) of the code. What this section essentially states is that a health plan does not discriminate in favor of highly compensated individuals as to eligibility to participate or benefits provided under the plan. 

Failure to comply with the code could result in a civil action to force employer groups to comply, and/or an excise tax of $100 per day per individual discriminated against and/or civil penalty of $100 per day for each individual discriminated against.

Some side thoughts........

This could be a good thing for many employees:  If you are an employee of a company, and you know that significant changes have been made to your health plan, first renewal after September 23, 2010, chances are you should be paying the same cost for your health care as everyone else in your company.

This could be a bad thing for some business owners:  If you are an owner of a company who has taken a risk to get it started, has provided jobs to many people, possibly put their own livelihood on the line, shouldn't that person possibly be rewarded by the company paying a larger percentage of their health care costs?

But Wait, There's More! 

The IRS on December 22, 2010 just announced in notice 2011-1 that compliance with the Non-Discrimination rules will be "Delayed" until the regulations or other administrative guidance has been issued.  The IRS said that plans would not be subject to the Non-Discrimination rules until plan years following  the issuance of the guidance.