Health Care Reform Act Requires Time Off for Employees to Express Breast Milk
By: KAREN G. SCHANFIELD
July 2010
The recently enacted Health Care Reform Act contains a provision that amends the federal Fair Labor Standards Act by requiring employers to provide reasonable unpaid time off and a private place other than a restroom for an employee to express breast milk for a year after a child’s birth. There is an exemption for employers of fewer than 50 employees for whom compliance is an undue hardship. The new law became effective on March 23, 2010, and does not preempt state laws that are more generous to employees.
As might be expected, the new law creates a number of questions. For example, it is not clear whether the required breaks are to be in addition to or run concurrently with breaks that are otherwise required under state law or collective bargaining agreements. Nor does the new law define how many breaks must be provided, how much time is “reasonable,” what penalties apply in the event of violation, the standards for determining “undue hardship,” and whether the break time is considered “hours worked” for purposes of minimum wage and rest/meal break laws. These questions may be answered by regulation, but it is likely to be several months before the Department of Labor regulations are issued.
Minnesota law requires that employees receive a meal break that is long enough to eat a meal during every eight consecutive hours of work. In addition, state law requires employers to allow employees adequate time to use the restroom during every four consecutive hours of work and to provide employees with “reasonable” unpaid break time to express breast milk for infants. The latter law suggests, but does not require, that a room other than a restroom be provided for expressing breast milk. The nursing mother statute also provides that this break must, “if possible, run concurrently with break time already provided to the employee.” Since the Minnesota nursing mother statute is not more favorable to the employee on the issue of whether breaks must run concurrently, it is preempted by the new federal law, at least as to this issue. Similarly, the new law likely preempts the state law’s application to employees who have “infants” since it applies for a full year after the child’s birth.
Although employers have some latitude in handling requests for time off to express breast milk in light of the current uncertainty, we suggest avoiding overly rigid practices as to the frequency and duration of breaks. Employers will be well served by working with employees covered by the law to resolve any differences that arise as we await clarification from the Department of Labor.
Takeaway
Break time for employees to express breast milk is now required by both federal and Minnesota law.