Among the least-publicized changes in the recently enacted health care reform bill (Patient Protection and Affordable Care Act, or Act) is an amendment to the Fair Labor Standards Act (FLSA) that will significantly impact the workplace. The new law requires employers subject to the FLSA to provide rest breaks so nursing mothers can express milk. The amendment requires that a break be provided “each time such employee has the need to express the milk” for one year after the child’s birth. It also mandates that the employer provide a place other than a bathroom, shielded from view, and free from intrusion from co-workers or the public where the milk can be expressed.

Departing from DOL regulations, which provide that rest periods of a short duration should be paid as hours worked, the new Act specifically states that these breaks can be unpaid. The Act applies to all employees covered by the FLSA, but those with less than 50 employees are exempt if the requirements “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, or structure of the employer’s business.” Given the application of similar language in other employment-related legislation, the burden will be placed on the employer and will not easily be satisfied.

The Act raises several practical concerns and questions. For example, the frequency of the need to express milk as well as the length of time needed to do it will vary. It also could be open to abuse and could impact productivity. Providing a suitable place also could be problematic for some businesses. The DOL is expected to issue regulations that might address some of these issues.

It is unclear when this Act will become effective and what the penalty will be for a violation. However, especially in light of the fact that some states already provide protections for nursing mothers, and may even require the breaks to be paid, employers should change their policies to reflect this obligation and train managers accordingly.