ABA Health eSource
September 2010 Volume 7 Number 1

Lactation Provisions in the Patient Protection and Affordable Care Act

By Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, DC 1

AuthorOf the many provisions in the recently enacted Patient Protection and Affordable Care Act (“PPACA”) 2 , one that went largely overlooked by the media grants new rights to lactating mothers in the workplace, via an amendment to the Fair Labor Standards Act. Under the provision, employers with more than 50 workers will have to provide new mothers, for up to one year after a child’s birth, with “reasonable” time to take unpaid breaks to express breast milk for their nursing children. Such employers will also be required to provide a private space—other than a bathroom—for the employee to do so. This provision will not preempt state laws to the extent that state laws provide greater protections. 3 On July 15, 2010, the Department of Labor released “Fact Sheet #73: Break Time for Nursing Mothers Under the FLSA,” to assist employers in complying with the lactation break time obligations under the PPACA. 4

Section 4207 of the PPACA, now codified as 29 U.S.C. § 207(r)(1)-(4), is the new federal mandate, requiring that employers provide reasonable break time for nursing mothers to express breast milk. The full text of the FLSA amendment is as follows:

SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:

‘‘(r)(1) An employer shall provide—

‘‘(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

‘‘(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

‘‘(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

‘‘(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such 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.

‘‘(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.’’

There are a number of important takeaways:

  1. The mandate applies to all nursing mothers of infants aged 12 months or less who are not exempt from the FLSA’s overtime pay requirements. 5
  2. The provision only mandates the right to express breast milk; it does not create a right to breastfeed an infant at work.
  3. Employers must furnish a private place, not a bathroom. 6
  4. The private place need not be dedicated to nursing mothers’ use, but it must be available when needed by nursing mothers. 7
  5. The private place must be shielded from view and from intrusion by coworkers and the public. 8
  6. State law may mandate not only greater lactation rights, but also may mandate breastfeeding rights. 9 Connecticut, for example, by statute since 2001 has provided that employees can express breast milk or breastfeed on the job during meals or break periods, and that employers must make reasonable efforts to provide a place nearby the work area—not a toilet stall—to express milk in private, as long as it would not impose an undue hardship on the operation of the employer. 10
  7. Employers of 50 or more employees have no exemptions; employers of less than 50 employees are exempt if they can meet Section 207(r)(1)(3)’s “undue hardship” test—“causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” 11
  8. The amendment contains no effective date, and as such became effective upon President Obama’s signing the PPACA on March 23, 2010.
  9. The amendment contains no penalties for non-compliance, and no explicit private right of action. 12

Employers are confronted with a number of issues 13 :

1. DOL’s Fact Sheet provides that “[e]mployers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk.” 14 But, DOL further states, “where employers already provide compensated breaks, an employee who uses break time to express milk must be compensated in the same way that other employees are compensated for break time.” 15 So, if an employer compensates employees who take shorts breaks, for example, to smoke or use the restroom, a nursing mother-employee would be entitled to the same compensation to express breast milk.

But how much time is reasonable for a nursing mother’s lactation break? Short breaks running from 5 to 20 minutes generally are counted as hours worked under the FLSA regulations and subject to compensation for non-exempt employees. 16 DOL’s regulation on breaks specifically provides:

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.

So, for employers, is 5 to 20 minutes a reasonable amount of break time to expect a nursing mother to express milk? The federal government’s source for women’s health information, WomensHealth.gov, provides the following guidance to nursing mothers in the workplace:

Express milk for 10-15 minutes approximately 2-3 times during a typical 8-hour work period. Remember that in the first months of life babies need to breastfeed 8-12 times in 24 hours. So you need to express and store milk during those usual feeding times when you are away from your baby. This will maintain a sufficient amount of milk for your childcare provider to feed your baby while you are at work. The number of times you need to express milk at work should be equal to the number of feedings your baby will need while you are away. As the baby gets older, the number of feeding times may decrease . . . It usually takes 10 minutes to express milk, plus time to get to and from the lactation room. 17

2. Will travel time between the work location and the private location for expressing milk be compensable?

3. Note that the exemption is not automatic, but instead only available if employers with fewer than 50 employees can meet the “undue hardship” requirement. So, for employers with fewer than 50 employees, what exactly constitutes the “undue hardship” that would qualify for the exemption, and how does an employer make this showing?

Finally, while reviewing written policies to ensure that adequate breaks are provided, as well as providing and maintaining an adequate private space, employers should also heed some of the business benefits of accommodating breastfeeding mothers, as suggested by the U.S. Department of Health and Human Services in a 2008 release: breastfeeding employees are less likely to miss work, as babies fed on breast milk are healthier; and with healthier babies and mothers come lower health care costs. 18

1 Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick, PLLC in Washington, D.C. Mr. Fitzpatrick represents clients in employment law and employee benefits matters. He has concentrated his practice in employment law disputes for over forty years. Mr. Fitzpatrick received his J.D. with honors from the George Washington University’s National Law Center in 1967. He has been a member of the Bar of the District of Columbia since 1968. This article was prepared with assistance by Donald R. McIntosh, an associate with Robert B. Fitzpatrick, PLLC. Mr. McIntosh is a May 2008 graduate of Georgetown University Law Center and a member of the Virginia State Bar.
2 Pub. L. No. 111-148 (2010), signed into law by President Obama on March 23, 2010, together with the Reconciliation Act of 2010, Pub. L. No. 111-152, signed into law by President Obama on March 30, 2010. For the combined, full text of both acts, see http://www.ncsl.org/documents/health/ppaca-consolidated.pdf.
3 For a summary of state breastfeeding and lactation legislation in the U.S., see National Conference of State Legislatures, Breastfeeding Laws, available at http://www.ncsl.org/default.aspx?tabid=14389 (last updated Mar. 2010).
4 U.S. Dep’t of Labor, Wage & Hour Div., Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, July 15, 2010 [hereinafter “DOL Fact Sheet”], available at http://www.dol.gov/whd/regs/compliance/whdfs73.pdf .
5 Id. But, “[w]hile employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7 [of the FLSA], they may be obligated to provide such breaks under State laws.” Id.See alsosupra note iii.
6 For example, the Department of Health and Human Services suggests the following: a little used existing office space or other room; a clean, infrequently used closet or small storage area; sectioning off a small corner of a room with either permanent walls or portable partitions; a walled off corner of a lounge adjacent to the women’s restroom; or adapting a “small unused space” that is not utilized well for other needs. United States Department of Health and Human Services, Easy Steps to Supporting Breastfeeding Employees (2008), available at http://www.womenshealth.gov/breastfeeding/programs/business-case/easy-steps-to-supporting-breastfeeding-employees.pdf. See also DOL Fact Sheet, supra note iv (“A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk.”).
7 See DOL Fact Sheet, supra note iv.
8 See id. (“A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.”).
9 See supra note iii.
10

Conn. Stat. Gen. Stat. § 31-40w (2010), available at http://www.ctdol.state.ct.us/wgwkstnd/laws-regs/statute31-40w.htm.

11 DOL’s Fact Sheet further provides that “[a]ll employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.” DOL Fact Sheet, supra note iv.
12 Future DOL guidance may identify remedies. For example, DOL may look to the Breastfeeding Promotion Act of 2009 (S. 1244, 110th Cong. (2009)), from which the PPACA’s lactation provisions originated. The Act provides the following: “In lieu of any other remedy under this section or Section 17 [of the FLSA], any employee who is harmed by a violation of section 7(r) may bring an action to enjoin such violation and to recover such equitable relief as may be appropriate to effectuate the purposes of such section.”
13 See Posting of David S. Fortney, Esq., to Fortney Scott, “What’s New,” FLSA Amended to Require Breastfeeding Breaks, http://www.fortneyscott.com/index.php?option=com_content&task=view&id=240&Itemid=209 (Apr. 2, 2010).
14 DOL Fact Sheet, supra note iv.
15 Id.
16 29 C.F.R. § 785.18 (2010).
17 WomensHealth.gov, Employees’ Guide to Breastfeeding and Working, The Business Case for Breastfeeding: Steps for Creating a Breastfeeding Friendly Worksite at 4 (2008), available at http://www.womenshealth.gov/breastfeeding/programs/business-case/employees-guide.pdf.
18 Id. at 5.

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