A lot of press has been generated by health care reform and the recent passage of the "Patient Protection and Affordable Care Act." But did you realize that the PPACA resulted in amendments to the Fair Labor Standards Act It's true - and here is the change that will impact many employers most quickly.
The section of the FLSA pertaining to breaks, Section 7, has been amended to require employers to provide (1) reasonable breaks to allow nursing mothers to express breast milk for their babies for one year after the child?s birth and (2) a private place other than a restroom for the expression of the breast milk a lactation station, as it were. The lactation station may presumably be used for other purposes so long as it is:
- shielded from view
- free from intrusion by coworkers or the public.
There is a hardship exception for employers with fewer than 50 employees. If these small employers can establish an "undue hardship," meaning "significant difficulty or expense," then the employer may be exempt from the requirement. "Significant difficulty or expense" will be evaluated in terms of the employer's overall size, resources and structure.
Although the amendment took effect on March 23, 2010, as of the date of the PPACA's signing, it will probably be some time before the DOL issues any regulations in this regard. The term "reasonable" has not been defined, and the duration of the break will vary from mother to mother. Employees are permitted to take such breaks "each time such employee has need."
About half the states already have some form of lactation break statute in place. In these states, the more generous of the two (the federal and the state law) controls. West Virginia does not have a statute pertaining specifically to lactation breaks, but does have a general break statute, as follows:
W. Va. Code ?21-3-10a. During the course of a workday of six or more hours, all employers shall make available for each of their employees, at least twenty minutes for meal breaks, at times reasonably designated by the employer. This provision shall be required in all situations where employees are not afforded necessary breaks and/or permitted to eat lunch while working.
The new law provides that employers do not have to compensate employees for the time spent taking lactation breaks. In some cases, this will be a departure from the normal FLSA rule that breaks of less than 20 minutes must be counted as compensable time. Bear in mind, however, if you are in a jurisdiction where the rule is otherwise, you must apply state law.
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