Kelley Baker kbaker@hslegalfirm.com
Karen Haase
Steve Williams
khaase@hslegalfirm.com
swilliams@hslegalfirm.com
EMPLOYERS REQUIRED TO PROVIDE BREAKS FOR BREASTFEEDING On March 23, 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (Act). It amends the federal Fair Labor Standards Act (FLSA) and requires employers to furnish “reasonable” breaks to mothers to express breast milk for their infants under one year of age. The newly enacted section of the FLSA can be found at 29 USC § 207(r). It requires employers to provide “reasonable break time” to an employee who wishes to express breast milk for her nursing child each time the employee needs to express milk. The new law does not define the length of “reasonable break time” or how many times the employer must provide such breaks during the workday. The employer must provide the employee a place, other than a bathroom, which is “shielded from view and free from intrusion from co-workers and the public” for one year after the child’s birth. The law does not require an employer to compensate employees for the break time. This is an exception to the FLSA requirement that employers pay employees for breaks of 5 to 20 minutes. Nebraska’s state Wage and Hour Act is silent on an employer’s authority to treat this time as unpaid. Therefore, Nebraska employers may be required to pay employees who take a breastfeeding break. The requirements apply without exception to all employers with more than 50 employees. Employers with fewer than 50 employees are exempt from the requirements if they can show that the requirements would impose an “undue hardship by causing the employer significant difficulty or expense.” Factors used to determine “undue hardship” include the size, financial resources, nature and structure of the employer’s business. The new law does not preempt any state laws that would provide greater protection to employees. However, the preemption is irrelevant in Nebraska because state laws do not provide any workplace protection to breastfeeding mothers. Nebraska’s only protection for breastfeeding mothers is found in § 25-1601 of the Nebraska statutes which excuses a nursing mother from jury service until she is no longer nursing her child. The Act does not specify an effective date so it appears to have become effective on March 23, 2010. The U.S. Department of Labor is expected to issue implementing regulations by the end of the year. Employers’ legal requirements are constantly evolving and school districts must do what they can to keep current. If you have any questions or concerns regarding this or any other issue, please contact your school attorney or Kelley, Karen, or Steve. I:\3\7613\E-mail Updates\098.doc