As the nation awaits the Supreme Court’s opinion on the constitutionality of its individual health insurance mandate, some lesser-known provisions of the “Patient Protection & Affordable Care Act” (a.k.a. “Obamacare”) have received short shrift.  For instance, the Affordable Care Act also amended the Fair Labor Standards Act (“FLSA”) and requires employers to provide nursing employees with “a reasonable amount of break time to express milk as frequently as needed” for up to one year after a child’s birth.  The law also requires all employers subject to FLSA to provide employees with a private place to express milk that is not a bathroom.

While at first blush, this law sounds rather broad, it contains several limitations:

1. It only applies to non-exempt employees.  Thus, the law does not touch the employees who may be easiest to accommodate:  exempt employees who already have some control over their work schedules and may be more likely to work in offices where they can express milk in privacy.
2. It only mandates unpaid breaks.  But, if an employee uses her regular, paid rest breaks to express breast milk, the break should be compensated as though it were any ordinary break.
3. It contains a wide exception: employers with fewer than 50 total employees who can demonstrate undue hardship “looking at the difficulty or expense of compliance […] in comparison to the size, financial resources, nature and structure” of their business need not offer these lactation breaks at all.  The DOL has yet to issue any regulations; so many grey areas in the statute remain unclear.  What little guidance the DOL has provided is available here.
4. It does not preempt more generous state laws.  For instance, in California, an existing law already affords all employees (exempt and non-exempt) reasonable break time to express breast milk.  And in California, the provision has some teeth to it.  A violation of the California provision is subject to a civil penalty of $100 per violation.  New York also requires employers to provide similar breaks, and it extends the time for “up to three years following childbirth.”

 

As the EEOC steps up its investigation into so-called “caregiver” discrimination, employers can expect to see more action from the EEOC to guarantee lactating employees the benefits of this law as well. Employers who are interested in getting guidance on how to accommodate lactating employees in the workplace can find some tools here or reach out to Orrick employment lawyers.