Employers Must Provide Private Space and Time Breaks for Employees who Express Breast Milk under Patient Protection and Affordable Care Act/FLSA

Employers Must Provide Private Space and Time Breaks for Employees who Express Breast Milk under Patient Protection and Affordable Care Act/FLSA

Bullivant Houser Bailey PC

By Brian K. Keeley

NEW FEDERAL LAW. Washington and Nevada employers need to be particularly aware of an important new development arising out of the passage of the Patient Protection and Affordable Care Act (recently signed by President Obama)("Federal Health Care Law"). The Federal Health Care Law amended the FLSA so that employers are required to provide certain accommodations to employees who need to express breast milk in the work place. California and Oregon employers should be aware of the new law, even though they were already subject to state law requirements with regard to employees who express breast milk.

Under the new federal law, employers must provide:

(1) A reasonable break time, as needed, for an employee to express breast milk for her nursing child for one year after the child's birth; and

(2) 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.

Washington law provides that all employees must be given a paid 10 minute break per four hour shift. An employee may use that break for expressing breast milk, however employers should be aware that a "reasonable" break to express breast milk will likely be longer than the paid 10 minute break (although the additional break time required may be unpaid). For instance, Oregon's state statute requires an employer to provide breaks of not less than 30 minutes to accommodate an employee who needs to express breast milk. California state law, on the other hand, is in line with federal law in requiring a "reasonable" break.

An exception also exists under federal law for employers who have less than 50 employees if the break requirements would "impose an undue hardship" meaning "significant difficulty or expense" given the size, resources, or structure of the business.

WHAT EMPLOYERS NEED TO KNOW. Employers need to be aware of the various leaves required by State and Federal law. In all states, daily, intermittent breaks to express breast milk, as well as a private space to do so, is now required. Employers should update their employee handbooks to reflect the new law. Employers should also continue to carefully consider all leave requests - whether or not required by statute. It is not sufficient to merely know the written laws that require leave. Some thought must go into why the employee is requesting the leave and whether it involves an especially serious situation or important issue.

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