Fair Labor Standards Act Requirement Buried in Health Care Reform

An unheralded and little discussed portion of the Patient Protection and Affordable Care Act, signed into law by President Obama on March 23, 2010, amends the Fair Labor Standards Act (FLSA). 29 U.S.C. section 207(r)(1) now requires employers to provide “a reasonable break time for an employee to express breast milk…” This requirement continues for one (1) year after the birth of the employee’s child. The amendment also requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public…” in which to express breast milk. Fortunately, employers are not required to compensate employees for this break; however, several concerns are immediately raised by the amendment. For example, what is a reasonable break? 10 minutes? 30 minutes? An hour? This is an issue that will be determined by the courts or through regulations issued by the Department of Labor as the law is not clear. Additionally, some employers may find it difficult to provide a place that is shielded from view and free from intrusion.

This requirement applies to every employer. If an employer has fewer than 50 employees, it may be excluded from the requirements of the amendment, but only if permitting the breaks would cause an “undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” This means the burden is on the employer to demonstrate an undue hardship.

The amendment specifically provides that it will not preempt state laws that afford greater protections to employees. Ohio and Florida currently have no such laws. Interestingly, the Supreme Court of Ohio ruled in August 2009 that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against by her employer. Allen v. totes/Isotoner Corp., 129 Ohio St.3d 216. The outcome of this case would be drastically different today given the amendment and the requirement to provide a reasonable break.

Author: Jon Secrest

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