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FLSA Amended to Provide for Breaks to Nursing Mothers

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (Affordable Care Act) into law.  The new law requires employers to provide a reasonable break time and a private place – other than a bathroom – for an employee to express breast milk for her nursing child for a period of one year after the child’s birth.  This new requirement became effective on the date of enactment.  Under § 4207, which amended the Fair Labor Standards Act to include this new rule, employers with less than 50 employees may be exempt if the requirement would impose an undue hardship.

The employer must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for an employee to use when expressing breast milk (FLSA Sec. 7(r)(1)(B), as added by Affordable Care Act Sec. 4207). An employer does not have to compensate an employee receiving reasonable break time to express breast milk for any work time spent expressing breast milk during the break (FLSA Sec. 7(r)(2), as added by Act Sec. 4207 of the Affordable Care Act).

An employer that employs less than 50 employees is not required to provide reasonable break time or a shielded place for nursing mothers to express breast milk if these requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business (FLSA Sec. 7(r)(3), as added by Affordable Care Act Sec. 4207).

The six states that have enacted laws requiring accommodations for nursing mothers are California, Connecticut, Hawaii, Illinois, Minnesota and Tennessee. In addition, California, Idaho, Iowa and Oregon have enacted laws that would excuse nursing mothers from jury duty.  Under this new federal law, an employer must provide a reasonable break time for an employee to express breast milk for her nursing child each time the employee needs to express milk for a period of one year after the child’s birth (Fair Labor Standards Act (FLSA) Sec. 7(r)(1)(A), as added by Affordable Care Act Sec. 4207).  A state law that provides greater protections to employees is not preempted by these new federal requirements (FLSA Sec. 7(r)(4), as added by Affordable Care Act Sec. 4207).

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