Seventeen states, including Illinois, already have statutes that speak to an employer's obligation to provide rest breaks for the purpose of expressing milk. For those states without legislation for expressing milk in the workplace, like Michigan and Arizona, as of March 23, 2010, federal law now requires most employers to provide nursing mothers "reasonable break time" to express breast milk for up to one year after the birth of their child.

Section 4207 of the Patient Protection and Affordable Care Act, better known as the federal Health Care Reform law, contained this requirement as an amendment to the Fair Labor Standards Act. However, the amendment does not specify what constitutes "reasonable" break time, nor does it indicate any limits on the number of breaks a nursing worker may take under its provisions. The U.S. Department of Labor (DOL) will likely enact regulations that define how many breaks and how much break time is "reasonable."

The newly enacted section (29 U.S.C. 207(r)(1)) of the FLSA also requires employers to furnish a private space, other than a restroom, for mothers to express milk.

The law does not apply to businesses with fewer than 50 employees if its requirements would impose an undue hardship by causing the employer significant difficulty or expense relative to the employer's resources.

In addition, employers do not need to compensate the nursing employee for the break time under this provision. This is an exception to the general FLSA rule that employers must pay employees for breaks of less than 20 minutes. As a cautionary note, some state laws may limit an employer's ability to treat the time as unpaid.

In the states that already have legislative protections for nursing working mothers, employers must follow the standard (either federal or state) that is more generous to the employee.

For assistance in determining whether your company policies should be modified to reflect this new law or for assistance with other labor and employment issues, please contact the article contributor or your Clark Hill Labor and Employment attorney.

To find out more about Clark Hill and our Labor and Employment Practice Group, visit clarkhill.com or call 800.949.3124

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