Public Asked To Comment On Break Time For Nursing Mothers Law

by Melissa Clark Vickers
January 04, 2011

More often than not, passing a law is the easy part—implementing it is the hard part. The Patient Protection and Affordable Care Act (PPACA) of 2010, which amended section 7 of the Fair Labor Standards Act (FLSA), requires that employers provide “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.” In addition, employers are required to provide “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.” The Federal government is now trying to decide how best to help employers and employees understand the law.

After consulting with lactation experts including those at the Centers for Disease Control and Prevention (CDC), the U.S. Department of Labor (DOL), has issued preliminary guidance. Before it releases the final guidance, the DOL has made an official “Request for Information” and wants to hear from the real experts in managing working and pumping—nursing mothers who are most affected by this new law.

The DOL recognizes that every mother’s situation is different with respect to milk expression needs—the mother of a 6-week-old exclusively breastfed baby will need to express more often than the mother of a 6-month-old baby who is eating solid foods; a mother using a hospital-grade pump may require less time than a mother using a hand pump; and some mothers may require extra time to get to the designated nursing station, depending on its location. All of these factors should be taken into account in deciding how much break time a mother needs. Mothers need to understand that this break time is unpaid, unless the mother is using paid break time afforded to all employees.

Not for everyone
Not all businesses and employees are covered by FLSA and the new break time law. First, there must be “enterprise coverage” or “individual coverage.” Enterprises are those employers with annual dollar volume of sales of at least $500,000, hospitals, businesses providing residential medical or nursing care, schools and preschools, and government agencies. Individuals are covered if their work regularly involves interstate commerce such as the sales of goods across state lines, regular phone calls out of state, travel, or handling of interstate transaction records.

Some state laws provide similar coverage even when the FLSA law does not apply, and the DOL encourages all employers to provide this break time regardless of whether the law specifically applies to them.

The law also recognizes that providing this break time might cause “undue hardship” to small businesses with less than 50 employees. Employers claiming “undue hardship” are required to show that compliance with the law would cause them “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

Setting an example at the top
President Obama has taken the spirit of this new law seriously and recently issued a Presidential Memorandum for the Director of the Office of Personnel Management to provide “appropriate workplace accommodations for executive branch civilian employees who are nursing mothers,” regardless of whether they are covered by the law. This builds on policies already in place for congressional staffers. House Speaker Nancy Pelosi created special nursing rooms in 2007, and the Senate is also required to make accommodations for breastfeeding staffers.

How you can help
The DOL is asking for public comment in creating official guidelines that employers and employees will use in implementing the break time law. Some of the issues the DOL has specifically asked for input on include:

• The law specifies that bathrooms are not appropriate places for pumping, but lounge areas connected to the bathroom might be sufficient. Under what conditions—if any—should these lounge areas be considered compliant under the law?
• What about locker rooms? Could they be appropriate nursing stations?
• The nursing station is not required to be a space designated solely for this purpose. What conditions might spaces such as managers’ offices, storage rooms, or utility closets be considered acceptable?
• What about workers who don’t have a fixed work setting—such as bus drivers, delivery workers, law enforcement officers, etc.? The DOL recognizes that creative thinking will be needed to make sure these workers have the opportunity and space for the nursing breaks required under the law.
• If an employee works offsite, what is the best way to ensure a time and space for her pumping needs?
• The DOL has created a website of resources for employers and employees. What kinds of information and resources would be most helpful to ensure compliance with the new law?

Send your comments…
Some businesses are already offering flexible work hours and private lactation rooms (read more about it here). Unfortunately, this is not the reality at every company. All working mothers deserve the time and space needed to pump and provide breast milk to their babies. So take a few minutes and make your voice be heard. You can share your comments on these and any other issues related to the new law one of two ways:

1. Federal eRulemaking Portal. Follow the directions provided for submitting comments.
2. Mail comments to:

Montaniel Navarro
U.S. Department of Labor
200 Constitution Avenue, NW
Room S-3502
Washington, DC 20210

Note that all comments received will be posted without change (including any personal information provided) to http://www.regulations.gov. Comments must be received by February 22, 2011.

Editor’s Note—July 18, 2012
When the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act recently, its decision affected several provisions for breastfeeding women and their families. As a result of this ruling, specifications related to break time for nursing mothers (Section 4207), women’s preventive health care services coverage, and community transformation grants continue to be implemented.

Details of the U.S. Supreme Court proceedings related to this Act can be found on the Court’s website. More information on how this decision affects breastfeeding mothers is available from the United States Breastfeeding Committee and the American Academy of Pediatrics.