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June 21, 2010

Patient Protection & Affordable Care Act Amends FLSA: Employers Must Provide Breaks To Nursing Mothers

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (the “Act”).  Section 4207 of the Act amends the Fair Labor Standards Act of 1938 (FLSA) by requiring employers to provide, for up to one year following childbirth, reasonable unpaid breaks to mothers wishing to express breast milk at the workplace.  The Act does not define “reasonable break period,” but does make clear that breaks are to be provided whenever the need to express breast milk manifests.  In addition, employers must set aside a private location for employees to express milk without interference from their colleagues or the public.  The Act states a bathroom will not be a sufficient location.

The Act mirrors some state laws but does not preempt the states’ broader requirements.  For example, New York Labor Law § 206(c) requires all employers, regardless of size and nature of business, to provide employees with reasonable unpaid break time or allow employees to utilize their paid breaks for the purpose of expressing breast milk for up to three years following childbirth.  New York employers must also provide a space, close to the work area, where employees may express milk in privacy.  Discrimination based on the need to express milk is strictly forbidden.  Nineteen other states have similar statutes. 

While the Act does not require employees be paid for time used to express milk, employers must recognize that de minimis break time (i.e., less than 20 minutes) cannot be docked due to existing regulations of the United States Department of Labor. 

Under the Act, employers who have fewer than 50 employees and who are able to articulate a significant reason for not providing breaks to nursing mothers may be exempt from amended § 4207 of the FLSA.  The factors to be considered in determining whether the Act presents an “undue hardship” for the employer include size of the establishment, its capital resources, or the nature of the business itself.  In contrast, the New York law does not provide any exemptions for employers. 

The Act was effective upon enactment; therefore employers must take immediate steps to ensure compliance.  The Department of Labor has not yet announced a release date for the publication of regulations pertaining to the Act.

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If you should have any questions regarding the Act or applicable state laws, please do not hesitate to contact us.