The Health Care Reform Bill, otherwise known as the Patient Protection and Affordable Care Act or PPACA, requires employers nationwide to provide unpaid time for a non-exempt employee who is a nursing mother to express breast milk, and a private location to do so.
The law requires that non-exempt or hourly employees be given reasonable unpaid time to express breast milk. The statute specifically notes that the duration and frequency of these breaks will vary from one employee to the next. Breastfeeding mothers are covered for one year after the infant’s birth.
The law does not apply to any employee who is exempt from the overtime provisions of the FLSA, although employers are encouraged to give such breaks to exempt employees as well as non-exempt employees.
In addition, under the new law the employer must provide a private location free from intrusion, and shielded from the view of the public or other employees, for the use of a breastfeeding employee. A bathroom, even a private bathroom, is not sufficient under the law. An office or other space that can be locked can be used, as long as it is made available when the employee needs it. Many employers meet this requirement by making the HR office or another manager’s office available to the nursing mother whenever she needs it.
Employers are not required to pay the nursing mother for these breaks to express breast milk. However, when the employer provides paid rest breaks to other employees, the nursing mother must be compensated in the same way.
The law does not preempt state breastfeeding laws that may offer the employee greater protection under the law. Currently Twenty-four states plus the District of Columbia and Puerto Rico have state breastfeeding laws. Those states include Arkansas, California, Connecticut, Colorado, Georgia, Hawaii, Illinois, Maine, Indiana, Minnesota, Mississippi, Montana, New York, New Mexico, Oregon, North Dakota, Rhode Island, Oklahoma, Texas, Tennessee, Virginia, Vermont, Washington and Wyoming.
The PPACA amended the Fair Labor Standards Act or FLSA, the federal minimum wage law that applies to employers who engage in interstate commerce, or employers who have more than $500,000 in annual sales.
The breastfeeding provisions of the PPACA apply to every employer with 50 or more workers. In addition, smaller employers are required to abide by the PPACA as long as it does not present an undue hardship to the employer. It would probably be an undue hardship for a small convenience store with only one employee on duty at a time to provide unpaid break time and a private location for a nursing mother to express breast milk. However, if the convenience store chain had more than 50 employees nationwide, the employer would have to make that accommodation, even if it was an undue hardship.
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