Tuesday, May 11, 2010


Nearly everyone in the country has heard about the sweeping healthcare legislation that passed recently in Washington, D.C. But how many employers are aware that included in the voluminous bill was a provision amending the Fair Labor Standards Act (FLSA)? In fact, one section of the healthcare bill amended the FLSA to require that certain covered employers provide breaks and private space for employees who are new mothers for purposes of expressing breast milk. The new law became effective on March 23, 2010, the day the President signed it.

The new rest break requirement applies to employers who are covered by the FLSA and employ at least 50 employees. Employers who are covered by the FLSA and who have fewer than 50 employees are not required to provide breaks and space “if such requirements would impose an undue hardship by causing the employer significant difficulty or expenses when considered in relation to the size, financial resources, nature or structure of the employer’s business.” The phrase “undue hardship” seems to be analogous to the “undue hardship” analysis that excuses an employer from providing a reasonable accommodation to a disabled employee under the Americans with Disabilities Act (ADA). As we have seen with the ADA, determining whether something is an “undue hardship” is a fact intensive inquiry and it is difficult to draw any bright-line rules. Accordingly, employers with less than 50 employees should consult with their legal counsel before denying breaks to employees on the basis that doing so would be an “undue hardship.”

Unfortunately for employers, the law does not provide any specifics on what employers are required to do. The amendment requires covered employers to provide nursing employees with “reasonable break time” to express breast milk “each time” the employee needs to do so. What is a “reasonable” amount of time is anyone’s guess and will vary from individual to individual. With respect to providing “space”, the law requires that covered employers provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” Employers have complied with this requirement in variety of ways short of constructing an entirely new room. Employers may designate an unused office or screen off an unused portion of a larger room. Despite the vagueness of other parts of the law, it is clear that the breaks are unpaid.

Since the law went into effect when it was signed on March 23, 2010, employers who have not already done so should consider taking appropriate actions to ensure that they comply with the new requirements. First, employers should determine whether the law applies to their company and which employees are covered. If the employer is covered and has eligible employees, the company should locate and designate a separate, private space (other than a bathroom) that employees can use for purposes of expressing breast milk. Additionally, employers should develop policies and procedures to accommodate nursing mothers and consider including these policies in the company’s Employee Handbook. Employers should also train supervisors and managers on the requirements of the new law and ensure that they know how to handle a question or request for accommodation from a nursing employee. Finally, given lack of specifics in the law, employers are encouraged to obtain advice from their employment counsel on how to comply with this law given the company’s unique circumstances. Members of Hunter Smith & Davis’s labor and employment team are available to provide such guidance if you have questions.

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