An often overlooked provision of the 2010 Patient Protection and Affordable Care Act (“PPACA”) provides important legal protections to nursing mothers in the workplace.
The PPACA, also sometimes referred to as “Obamacare,” amended Section 7 of the Fair Labor Standards Act (FLSA). Section 7 of the FLSA provides various obligations for employees that qualify for overtime pay (i.e. non-exempt employees). Employers are required to provide such covered employees with “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.” The break time may be unpaid, under the federal law. Also, employers are also required to provide those covered employees with “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.” Some state laws can be even more protective of the nursing mother’s rights.
The amendment makes clear that employers are required to provide the covered employees a reasonable amount of break time to express milk as frequently as needed by the nursing mother. That may differ depending on specific circumstances. Further, a bathroom, even if private, is not a permissible location under the law. Rather, the location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.
The amendment does not require employers to provide the break or private space to exempt (i.e. overtime eligible) employees. However, some states provide greater protections. Further, employers with fewer than 50 employees are not subject to the requirements if it would impose an “undue hardship.”
The FLSA also provides, at Section 15(a)(3), that it is unlawful for an employer to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Any employee who is illegally discharged or discriminated against for such protected activities, may file a retaliation complaint with the Wage and Hour Division of the Department of Labor or may file a private cause of action seeking relief including reinstatement, lost wages and an additional equal amount as liquidated damages.