The Patient Protection and Affordable Care Act and Reconciliation Act includes a provision that amends the Fair Labor Standards Act to require employers to provide nonexempt nursing mothers unpaid breaks to express breast milk in a private place other than a restroom for up to one year after the child's birth.

The breaks must be given as frequently as necessary. Employers with fewer than 50 employees, who can demonstrate that compliance would cause them significant difficulty or expense, are not subject to the law's requirements.

Several states already have similar laws and many companies (including our law firm) have had policies in place for years allowing nursing mothers to take such breaks, even though it is not required by local laws.

However, roughly half of the states have no laws at all pertaining to the workplace rights of nursing mothers.

An employer's duties with respect to nursing mothers vary significantly from state to state. For example, a voluntary program in Texas allows employers to be designated as "Mother-Friendly," but does not mandate breaks.

Across the Red River in Arkansas, employers are required by state law to provide unpaid breaks to exempt and nonexempt nursing mothers, can require the use of a bathroom (provided a bathroom stall is not used), must allow breaks even after the first year following the child's birth, but can seek to demonstrate undue hardship, regardless of size.

Employers operating in states with laws which are more protective than the recently enacted federal law will not have to change their policies or practices.

However, for employers operating in states with no workplace nursing laws, the recent FLSA amendments impose significant new obligations. Employers in those states will have to immediately modify their policies, and re-train supervisors and management to comply.

Arkansas dilemma

Employers operating in states like Arkansas are faced with a different dilemma. Where state laws provide more rights to nursing mothers than required by federal law in some respects, and fewer protections in others, employers must make sure their policies comply with both laws simultaneously.

For example, a large Arkansas employer may be eligible to demonstrate a hardship excusing it from complying with the state law, but still be subject to the federal law since large employers are not allowed a hardship exemption.

Conversely, while the federal law only applies to non-exempt employees, Arkansas employers must provide the breaks to all employees.

This tension between state and federal laws may create maddening results. An Arkansas employer with more than 50 employees could be subject to four different legal requirements:

1. Nonexempt employees for which the employer claims a hardship compliance exemption under Arkansas law would still be entitled to breaks under federal law for up to one year.

2. Nonexempt employees for which the employer does not claim a hardship compliance exemption would be owed breaks under state and federal laws for the first year, but indefinitely thereafter under state law.

3. Exempt employees would have rights to a break only under Arkansas law and no rights under federal law.

4. Exempt employees for which the employer claims a compliance exception would not be protected under state or federal law.

Although the Department of Labor has published a fact sheet describing the anticipated application of this new legislation, no interpretive regulations have been issued, thus leaving many questions unanswered.

For example, employers with drivers, construction workers or other non-workplace- based workers may have difficulty overseeing compliance.

Small retail establishments and restaurants may have only the manager's office (where money, financial information and confidential employee information are kept) available for required breaks. Until regulations are issued, employers will have to use their best judgment in resolving these issues.

In the long-term, proponents of the law believe it will encourage more working mothers to choose breastfeeding over bottle feeding. This, in turn, will result in healthier babies and children, thus reducing health care costs.

Proponents also believe that healthier children will result in fewer sick days and less Family and Medical Leave Act absences by mothers and fathers caring for sick children. Other potential benefits include increased employee morale and loyalty, and all of this will equate to lower costs to employers.

Detractors, however, fear that the additional burden will act as a disincentive for employers, particularly small businesses, to hire women or young mothers. This, they argue, is especially true for small employers who may not otherwise be subject to laws prohibiting discriminatory hiring practices.

Others fear that "as needed" nursing breaks can last 30 to 40 minutes and occur three times a day. Although the breaks are unpaid, some suspect that the perception of the nursing mother's co-workers - that they will have to cover for the nursing mother - will result in resentment and discord and thus decreased productivity.

This, they argue, may draw unwanted attention to the nursing mother and result in co-workers "suggesting," or worse, "pressuring" nursing mothers, and eventually expecting mothers, to bottle feed. Employers should uniformly hope that reality mirrors the proponents' prediction.

What employers can do

Hopefully, the DOL will quickly issue regulations in relation to the questions raised by this law. In the meantime, employers should work with nursing mothers to make sure that they are complying with this law and that they are comfortable with the arrangements provided.

Employers should consult with an employment law attorney if they have questions regarding compliance with this or any other workplace law and should update their employee policies to reflect the new requirements of this legislation.


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