New Health Care Law Requires Accommodations for Nursing Mothers; May Pose Challenge for Construction Industry

June 11, 2010
A provision of the Patient Protection and Affordable Care Act of 2010 (PPACA) requiring employers to provide a private location for nursing mothers to express breast milk may have flown under the radar for many employers.  The requirement amends Section 7 of the Fair Labor Standards Act (FLSA) and may pose challenges for many construction companies with nursing mothers working on a construction jobsite.  While many portions of the PPACA have specific effective dates, this portion does not and employers must comply with the requirement immediately. According to the new law, which was enacted on March 23, 2010, employers are now required to provide "reasonable break time" in a "suitable place, other than a bathroom" each time a nursing mother needs to express breast milk for up to one year after the birth of a child.  The location provided for the worker must be a private place "free from intrusion from co-workers and the public."  Regulations have not yet been issued defining what is considered a "reasonable" break time or limit to the number of breaks that should be taken during the work day.  All employers are required to comply with the requirements of this provision.  However, employers with fewer than 50 employees who are able to prove that complying with the requirements would "impose an undue hardship" by causing the employer significant difficulty in relation to its size, financial resources, or nature or structure of the business may be exempt. It is unclear whether a company with a nursing mother working on a construction jobsite would fall into this category. Employers are not required to compensate nursing mothers for time taken to express milk, but, under the FLSA, short breaks taken  by employees are generally considered time for which an employee must be paid.  While this new exception is given for nursing mothers, employers are still required to pay nursing mothers for short breaks otherwise given to all employees.   In addition, employers who generally provide short, paid breaks for smoking or other purposes should use caution in administering the new requirements for nursing mothers, since possible claims of discrimination may arise. Employers are advised to check state laws regarding the necessary requirements for nursing mothers, particularly because this new federal mandate does not preempt state laws with more generous provisions.  Supervisors should also be trained on the requirements of the law and new company policy, and employee handbooks and policy manuals should be updated to identify this new benefit for employees.
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