By: Anne Bibeau
Hidden deep within the incredibly voluminous health care reform law, the Patient Protection and Affordable Care Act (“PPACA”), is a provision that requires employers to provide reasonable break time for an employee to express breast milk for her baby under the age of one each time the employee has the need to express milk. The employer must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public for the employee to express milk. This requirement took effect when the PPACA was signed into law on March 23, 2010.
Because this requirement is an amendment to the Fair Labor Standards Act (“FLSA”), it does not apply to employees who are FLSA-exempt. The requirement applies to all employers, regardless of size, but an employer with fewer than fifty employees is not required to comply if doing so would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for the employer in comparison with the employer’s size, financial resources, nature, and structure of the employer’s business. In determining whether the employer has fewer than fifty employees, all of the employer’s employees—regardless of worksite—are counted.
Employers are not required under the FLSA to compensate employees for these breaks. This is contrary to the general rule under the FLSA that break periods of less than 20 minutes must be paid. However, if the employer already provides paid break-time to non-exempt employees, then an employee who uses her regular break to express milk must be compensated for that break in the same way as other employees are compensated for their breaks. Any additional breaks the employee may take to express milk may be unpaid, unless the employee is not completely relieved of all duties during the break.
For example, if you provide your non-exempt employees with two fifteen-minute breaks a day, under the FLSA those breaks must be compensated. An employee who uses her two breaks to express breast milk would be entitled to compensation for those two breaks. But if she needs additional breaks to express milk, those additional breaks would be unpaid, so long as she was completely relieved of all duties during those breaks.
Authored by attorneys, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice. For more information, contact Mike Sterling at 757-446-8626 or Bill Franczek at 757 -446-8600. Visit www .vanblk.com, for our library of Construction Law Tips. Suggestions for a topic? E-mail firstname.lastname@example.org.