The Health Care and Education Reconciliation Act includes a provision that requires employers to provide covered employees with the ability to take unpaid breaks to express milk for their nursing infants.

The law amends the Fair Labor Standards Act to require that employers provide nursing mothers with "reasonable" break time "each time an employee has need" to express breast milk for the first year following the birth of a child. Employers also are required to offer a workplace location for the purpose of expressing breast milk, which cannot be a bathroom and must be shielded from view and free from intrusion.

The new provision does not apply to any employee who qualifies as exempt under the Fair Labor Standards Act. Employers with fewer than 50 employees are excluded from the law's requirements, only if complying with them would impose "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 standard is highly fact-specific, and each employer will have to make an individualized determination as to whether the exception is likely to apply.

The U.S. Department of Labor has been given the authority to draft regulations offering guidance regarding what constitutes a "reasonable" amount of time to express milk, but until it does so, employers may wish to interpret this provision generously in order to avoid litigation risk.

This approach also may make good business sense, as some companies that have implemented lactation support programs report a reduction in absenteeism, health care costs and turnover rates.

- Sarah Andrews,
sarah.andrews@morganlewis.com,
Morgan Lewis & Bockius

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