New Healthcare Law Adds New Protections For Nursing Mothers
The recent healthcare reform law, known as the Patient Protection and Affordable Care Act, contained a provision which amended the Fair Labor Standards Act (“FLSA”) to require an employer to provide reasonable break time for an employee who is nursing to express breast milk for her child for one year after the child’s birth each time such employee has a need to express milk. Further, the law requires that the employer provide a place, other than a bathroom, for the employee to express breast milk. Some employers, already covered by state laws dealing with breast feeding mothers at the workplace, establish what are called lactation rooms to be used by nursing mothers who need to express breast milk during the work day.
This amendment to the FLSA does provide that the employer is not required to compensate an employee receiving reasonable break time for any work time spent expressing breast milk. However, this provision may pose practical difficulties for employers. Employers will have to decide how or whether to take advantage of this provision, with respect to keeping accurate records of time worked by employees.
The new amendment also states that if complying with this new law would impose an undue hardship on employers which employ fewer than 50 employees, then the employer need not comply with the law. However, since this provision allows an exception to the law, small employers should expect that when the Department of Labor issues regulations interpreting this law, this exemption will be very narrowly construed.
This amendment to the recent healthcare legislation is intended to further a public health goal of the United States Center for Disease Control to increase the proportion of mothers who breastfeed their babies in the early postpartum period to 75 percent by the year 2010. Health professionals and public health officials have promoted breastfeeding to improve infant health. These health professionals believe that mothers and children benefit from breast milk. Breast milk contains antibodies that protect infants from bacteria and viruses. Breast fed children have fewer ear infections, respiratory infections, urinary tract infections and have diarrhea less often. Infants who are exclusively breast fed tend to need fewer health care visits, prescriptions and hospitalizations resulting in a lower total medical care cost when compared to children who have never been breast fed.
It is also believed that mothers who breast feed also receive long-term preventative health effects, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer and osteoporosis. According to the Centers for Disease Control and Prevention, approximately 70 percent of mothers start breastfeeding immediately after birth, but less than 20 percent of those same mothers are breastfeeding exclusively six months later.
When this new law took effect at least 24 states, including, Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming, had some type of state law offering protection to nursing mothers who were breast feeding and needed to express milk while at work. The breast feeding amendments in the federal healthcare law build on these existing state laws by providing that any state law which is more protective than the federal law takes precedence over the federal law. Thus, employers in states with breast feeding laws that go beyond the new federal requirement need to ensure that they are complying with state law. All employers need to review their policies and practices with respect to nursing mothers to ensure that they are in compliance with state or federal law, whichever is applicable.