As you know, the President Barack Obama signed into law the Patient Protection and Affordable Care Act (the “Act”), which includes a large number of health-related provisions.  The Act will take effect over the next four years.  One provision of the Act, however, applies to employers immediately.  It amends the Fair Labor Standards Act (the “FLSA”) by requiring unpaid breaks to nursing mothers to express breast milk.  Although a number of states already have laws that require similar breaks for nursing mothers, this is the first federal law that requires such breaks.

Section 4207 of the 906-page Act, entitled “Reasonable Break Time for Nursing Mothers,” requires employers to provide a reasonable break time for an employee to express breast milk for her nursing child, each time she has such a need, for up to one year after the child’s birth.  Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusions from co-workers and the public, which may be used by the employee to express breast mil.  The law grants a relief to an employer with less than fifty employees if the new requirement imposes an undue hardship on the employer, which must show that the new requirements impose significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Unfortunately, the Act does not define the terms “reasonable break time” or “undue hardship.”  The Act provides no guidance regarding the appropriate duration or frequency of the required breaks or explains what constitutes a suitable place for nursing mothers to express milk.

The Act will likely to impose greater hardship on small and medium business.  Such business will have to spend their resources either to create suitable facilities to accommodate nursing mothers or be prepared to prove that such obligation imposes an undue hardship.  If the Department of Labor adopts the standard of undue hardship established by the American with Disabilities Act, this will be a difficult test for most employers to meet.  Until the Department of Labor issues new regulations interpreting the Act, all employers should err on the side of caution and consider what actions are necessary to accommodate nursing mothers’ requests to express breast milk.