Healthcare legislation, effective on March 23, 2010, amended the Fair Labor Standards Act to require employers to accommodate nursing mothers with a lactation area for expressing milk during their child’s first year of life.
Legislation for nursing mothers, that is currently in place in 24 states, Puerto Rico and the district of Columbia, will supersede the Federal legislation if their requirements for employer accommodation of nursing mothers offer more stringent accommodation. Forty-five states, the District of Columbia and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location.
While exact details will be worked out by the Department of Labor, employers might want to look to the policy for nursing mothers already adopted in Oregon, since this was the model for the adoption of the workplace accommodation for nursing mothers portion of the legislation.
Earlier, I also recommended a lactation or breast feeding policy that closely approximates the provisions of this law. If you had adopted this lactation policy, you are, for the most part, covered under this new nursing mothers’ legislation. (My policy provides a certain amount of paid time for nursing mothers.)
According to Alston & Bird’s labor and employment practice group, the new legislation, “amends the Fair Labor Standards Act (FLSA) to require employers to provide time for nursing mothers to express breast milk. Specifically, Section 4207 of the new law, ‘Reasonable Break Time for Nursing Mothers,’ provides that, for a period of up to one year following a child’s birth, employers must give an employee ‘reasonable break time’ each time she needs to express milk.
The law also requires employers to provide a location, other than a bathroom, shielded from view and free from intrusion where the employee can express milk.”
Employers that are exempt from the legislation are those with 50 or fewer employees who can prove that accommodation of nursing mothers will, according to Alston & Bird, create "'undue hardship’ by causing significant expense or difficulty in relation to the size, financial resources, nature or structure of the business.”
While the legislation states that the time provided is unpaid, the definition of “reasonable break time” and other details such as the exemption of a small employer because of “undue hardship” are undefined. The interpretation of the legislation for employers will be decided by the DOL.
In the meantime, labor attorneys at Alston & Bird suggest that you work with nursing mothers to accommodate their needs by providing time, a private space, and a supportive work climate.
Nursing Mother Space Needs
Employers will experience the most difficulty with providing a space that meets requirements. In one business currently, as an example, a private, handicapped accessible restroom that accommodated one employee at a time was designated for nursing mothers.
Accommodating only one employee and having a locking door, a shower, a sink, a toilet, a comfortable chair, and fresh towels, the employer considered the space more than adequate for the needs of a nursing mother.
Under the new legislation, this space may no longer qualify as it is a “restroom.” One hopes the Department of Labor will recognize the difference between a public, multiple employee accommodating restroom and a private, well-appointed space, also a restroom, that accommodates nursing mothers well.
The United States Breastfeeding Committee provides creative solutions about options for space accommodation. These suggested solutions include spaces as diverse as a work vehicle with privacy panels to block outside view and a space in a mall store shared by several neighboring businesses.
Like all aspects of health legislation, time, governmental agency guidelines and directives, and court decisions as a result of lawsuits will establish the final determinations for employers. Get ahead of the curve on workplace accommodation for nursing mothers.