Thursday, January 20, 2011

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.