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Express Yourself: Workplace Breast Pumping in the Health Care Reform Act

| William Joseph Austin, Jr. William Joseph Austin, Jr.

Special Bulletin

The Patient Protection and Affordable Care Act ("Health Care Reform Act") was signed into law on March 23, 2010.  Over the next several months, we will highlight major changes effectuated by this mammoth and historic legislation.

In this Special Bulletin, we will begin by addressing provisions which require employers to provide nursing mothers both time and space to express breast milk.  We also will dispel some of the misconceptions and scuttlebutt associated with it.

What Is True And What Is Not True?

True:  The Health Care Reform Act does include provisions that require employers who are subject to the Fair Labor Standards Act ("FLSA") to provide mothers reasonable break time to express milk for their infants who are up to one year old.  The Health Care Reform Act also requires employers to provide a discreet location to perform the function (not a bathroom) which is shielded from view and free from intrusion from coworkers and the public.

The new provisions are added to Section 7 of the FLSA.  Section 7 contains the basic time-and-one-half overtime provision and a grab bag of other wage and hour regulations.

Not True:  It is not true that the effective date of the breast pumping provisions is delayed until September 23, 2010; January 1, 2011; or any of the other future effective dates provided for or contemplated by other parts of the Health Care Reform Act.  These provisions became effective immediately on March 23, 2010.  They are now the law of the land.

Not True:  It is not true that the breast pumping provisions set up employers for a Title VII sex discrimination charge.  They create a new duty, and employers therefore have perfect license to afford certain of their female employees a disparate term of employment (i.e., a mandated, albeit unpaid, break).

Not True:  It is not true that employers with fewer than 50 employees are totally exempt from the breast pumping provisions.  Instead, the Health Care Reform Act provides a limited exception for employers with fewer than 50 employees if the provisions "would impose an undue hardship by causing the employer significant difficulty or expense."  Factors to be considered in making the "significant difficulty" determination are "the size, financial resources, nature or structure of the employer's business."  The limited exception, according to its terms, applies to the time requirement, or the space requirement, or both, but there are many permutations for how the exception may play out in any given case.

The bar for compliance is set relatively low.  For example, a small business that historically has made efficient use of space for operations will not have to add on a room to comply with the new requirements.  An example that comes to mind would be a restaurant, whether fast food, casual, or elegant dining.  Besides the areas for preparing food and serving customers, it may have only toilets for customers, perhaps separate toilets for employees, and a pantry for storage of inventory.  The space constraints and low profit margins make strict compliance with the requirements impossible.

By their terms, the new provisions do not require space behind a locked door, only space that "is shielded from view and free from intrusion from coworkers and the public."  An employer, therefore, could comply by installing a curtain and a sign reading "Keep Out When Closed."  In other words, the space, "shielded from view and free from intrusion," may require not much more than something like a department store dressing room.  Sensibility and sensitivity on this point may be informed by the not uncommon experience of seeing mothers nurse their babies in public, shielded from view by no more than a strategically placed shawl or blanket.  Certainly, employers may be challenged, but the wording of the exception seems to invite the exercise of benign imagination.

What Employees Are Covered?

Because the breast pumping provisions have been enacted as an addition to the FLSA, consider the bigger picture in which the provisions fit.  The FLSA sets minimum wage and overtime requirements on employers and employees engaged in interstate commerce (e.g., employees who manufacture, service, handle, ship, or receive goods which move across state lines, as well as employees who regularly cross state boundaries or routinely use the telephone or the mail while performing work).  Also, all of a business's employees are deemed to be involved in interstate commerce if the business has some workers who produce, handle, work on, or sell goods that have been moved in, or were produced for, interstate commerce and the business has gross revenues in excess of $500,000.  However, some businesses are always subject to the FLSA even if their gross revenues are less than the statutory minimum (viz., hospitals, rest homes, mental institutions, schools, colleges, and universities).  The coverage of the FLSA is so wide and deep that employers who think they are exempt would do well to double check with legal counsel, unless their business is cooking free range pigs for friends and family off a country road in a mid-state county and never uses the telephone, couriers such as UPS or FedEx, or the U.S. mail.

A Concession To Employers

A concession to employers is found in the provision that employers are not required to compensate employees during a breast pumping break.  Otherwise, breaks of 20 minutes or less normally would be required to be taken while on the clock.

For the breast pumping time to be non-compensable, however, the same rules that apply to bona fide meal time likely will have to be observed.  Specifically, employees will have to be afforded sufficient time to effectively perform the act, completely relieved from duty.  Nor would the "predominant benefit" test likely work in the case of breaks for breast pumping.  The new provisions specifically require freedom from intrusion by coworkers.  Employees should not be required to answer any questions, monitor calls, or experience similar work-related interruptions during a breast pumping break.

Potential Problems

Problems may arise in coordination of breast pumping breaks with other break time allowed by employers.  One possible solution to anticipated inefficiencies would be a requirement that breast pumping breaks take the place of breaks otherwise allowed.  However, it is important to recognize that while neither the FLSA nor the North Carolina Wage and Hour Act previously required employers to give adult employees any break time at all,1 employers now must allow for the breast pumping break.

Inefficiencies also can be expected during the months immediately post partum when a break for breast pumping may be required every couple of hours.  The time needed for the break may vary as well, some methods being quicker than others.  The new provisions provide for flexibility, using words and phrases such as "reasonable" and "each time such employee has need."

Additional Rules And Regulations

It is certain that the U.S. Department of Labor, which enforces the FLSA, will promulgate regulations and enforcement guidance.  Phrases like "undue hardship" and its close companion "significant difficulty or expense" typically cause much regulatory and interpretive ink to be spilled.

The Health Care Reform Act also contains a provision that specifically allows the states to provide greater "protections" than those provided by the new breast pumping provisions.  Neither North Carolina nor South Carolina has enacted any such law to date.  There are, however, 24 states that currently have laws relating to breast pumping in the workplace, including Tennessee and Virginia.  We can expect more to follow.

Conclusion

Employers on both sides of the 50-employee threshold will do well to review carefully issues of workplace time and space management with a magnanimous attitude of accommodating new mothers who return to work.  Immediate attention should be given to employee handbooks that provide for employee break time, as these rules likely will have to be updated.

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1North Carolina law does require breaks for youths under 16 years of age, who must be given at least a 30-minute break after five consecutive hours.

© 2010 Ward and Smith, P.A.

For further information regarding the issues described above, please contact William Joseph Austin, Jr.

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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