The Patient Protection and Affordable Care Act (PPACA) ushered in a range of new responsibilities for employers. Among them is the requirement that employers provide reasonable time and a private place for employees to express breast milk for nursing children.

Though the law took effect in March 2010, it has recently been gaining increased attention due to a decision by the first federal court to interpret the provision, and a newly issued report by the Labor Department assessing employer compliance with the law. Therefore, the time is ripe for employers to ensure that they understand what the law requires of them and make sure that they are ready and able to comply with it.

Applicable Law and History

Though signed into law with the passage of the PPACA, the requirements regarding accommodations for nursing mothers are codified in the amendments to Section 7 of the Fair Labor Standards Act (FLSA), in a section titled "Reasonable break time for nursing mothers."1 Under the law, employers must provide "reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk." Employers are also required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." The law applies to employers with 50 or more employees and covers both exempt and non-exempt employees.

The PPACA was not Congress’ first effort to enact federal legislation protecting nursing mothers. In 1998, Representative Carolyn Maloney introduced the New Mothers’ Breastfeeding Promotion and Protection Act, which would have allowed nursing mothers one hour each eight-hour workday to express breast milk at work, for up to 12 months.2 The bill did not get out of committee. In 1999, Maloney introduced the Breastfeeding Promotion and Employers’ Tax Incentive Act, which would have provided a tax credit for employers who set up a lactation location, purchased or rented lactation-related equipment, hired a lactation consultant, or otherwise promoted a lactation-friendly environment.3 The following years, she proposed the Pregnancy Discrimination Act Amendments of 20004 and the Breastfeeding Promotion Act of 2001,5 both of which were reintroduced in subsequent congressional sessions but never passed.6

Though slightly different from year to year, the bills sought to fill a gap in existing federal legislation that provided some protection to pregnant women and new mothers, but which did not directly address the issue of women who needed to express breast milk at work. For example, the Pregnancy Discrimination Act (PDA), passed in 1978, clarified that the prohibition against sex discrimination set forth in Title VII of the Civil Rights Act also prohibited discrimination on the "basis of pregnancy, childbirth and related medical conditions."7 Since the PDA’s passage, however, courts have consistently held that lactation is not a "medical condition" for purposes of receiving protection, and that employees were not entitled to accommodations based on the need to express.8

Likewise, the Family Medical Leave Act (FMLA) provides some allowances to new mothers, as it permits women to take up to 12 weeks of unpaid leave following the birth of a child.9 Employees who avail themselves of FMLA leave must be allowed to continue to receive medical benefits during their absence and, with some exceptions, must be reinstated at the end of their leave to the same job or to one that is substantially similar to the one they held before they left. Not all employees are entitled to FMLA leave, however: In order to qualify, an employee must have worked for her employer for at least 12 months and at least 1,250 hours.10

In addition to federal laws, several states offer protections that mirror or expand upon those provided at the federal level. Some states, for example, have laws akin to the FMLA, which permit new mothers to take a certain number of weeks of unpaid leave.11 Many states have laws specifically relating to breast-feeding in the workplace. For example, Arkansas requires an employer to provide reasonable unpaid break time each day (provided that doing so would not create an undue hardship) to an employee who needs to express breast milk; it also requires an employer to make a reasonable effort to provide a private space other than a bathroom stall, where an employee can express.12 Colorado requires an employer to provide reasonable break time for an employee to express breast milk for up to two years after the child’s birth.13

Employers must also make reasonable efforts to provide a place, other than a toilet stall, for the employee to express in privacy. Though the laws differ, 24 states, the District of Columbia, and Puerto Rico all have laws regarding breast-feeding in the workplace.14

Case Law and Other Guidance

At present, there is little case law interpreting the FLSA’s "nursing mothers" provision. In December 2012, the U.S. Court of Appeals for the Eleventh Circuit became the first federal court of appeals to rule on the provision, in the case of Miller v. Roche Surety & Casualty.15 The plaintiff in that case, Danielle Miller, was free to take breaks as needed to express breast milk. Her breaks were neither counted nor timed, and she was not criticized for taking them. Miller was given access to nearby vacant offices where she could express, though she preferred to use her own office and taped folders to the windows for privacy. She did not inform anyone at work that she would be expressing in her office and did not ask for an alternate location.

At one point, when she was scheduled to work at another office, she emailed her employer to inform her that while there, she would need a place to express twice, and would also need coverage while she was doing so. Concurrently, Miller also emailed family and friends voicing her discontentment with her employer and specifically referencing the FLSA’s nursing mothers provision.

Miller alleged that her employer violated §207(r)(1) because it did not give her a time and place to express breast milk. She further alleged that her subsequent termination was a violation of the FLSA’s anti-retaliation provision, claiming that she was terminated because she had asked for a time and a place to express. In dismissing Miller’s claims, the court found that the employer had in fact provided Miller with reasonable time and a private place to express. The court also rejected her claim that she was retaliated against, finding that Miller’s email to her employer did not satisfy the levels of formality or clarity required to put the employer on notice that she was filing a complaint. The email never alleged or even intimated that the employer had violated the law, but rather was a prospective request for compliance. Miller’s emails to her friends also did not constitute a complaint under the FLSA, even though her employer could have monitored them and theoretically read them.

A second case of note in the development of the law under §207(r) is that of Salz v. Casey’s Marketing.16 In that case, the plaintiff returned to her job at a convenience store and required time to express at work. Her supervisor assured her that the store office was a secure and private place, and the plaintiff used it. Three months later, however, the store was acquired by the defendant, which installed a camera in the office, which the plaintiff noticed one day while she was expressing. The plaintiff complained that she was uncomfortable with the camera, and the defendant told her that she could cover it with a bag, but made no other accommodations. The plaintiff complained that she was still uncomfortable, which impeded her ability to express; shortly thereafter, she was reprimanded for several issues relating to her job performance and responsibilities.

An Iowa district court dismissed the plaintiff’s claim that the defendant had violated §207(r), noting that the enforcement provisions relating to that section only provided for unpaid wages, and therefore, the plaintiff had no recourse in the courts. It cited to a 2010 notice from the Department of Labor, which stated that an employee who believed that her employer violated §207(r) could file a complaint with the Labor Department, which could then seek injunctive relief in federal court.17 But despite the court’s dismissal of the portion of the complaint alleging violations of the "nursing mothers" provision, it nonetheless found that the plaintiff could still maintain a cause of action for constructive discharge and retaliation. Therefore, it denied the defendant’s motion to dismiss that portion of the complaint and allowed the case to proceed.

Apart from judicial opinions that help define employer responsibilities and liability under the "nursing mothers" provisions, employers may find guidance in a fact sheet published by the Labor Department, titled "Break Time for Nursing Mothers under the FLSA."18 The fact sheet outlines the general requirements of the provisions, as well as providing some detail about the requirements regarding time and location of breaks. It further describes which employees and employers are covered by the FLSA and the circumstances under which employees must be compensated when they take breaks to express.

Best Practices

When considering what type of space to set aside for employees who need to express, employers should not hesitate to think creatively. While the amount of time that an employee needs to express should also be considered and respected, a recent report by the Labor Department found that in a survey of 54 investigations into alleged violations, the overwhelming majority of violations involved the employer’s failure to provide space for the break.19

The FLSA makes clear that a bathroom is not an acceptable space to require an employee to express, but otherwise states only that the space must be "shielded from view and free from intrusion." Spare rooms or vacant offices are possibilities so long as they satisfy the law’s requirements, but employers should also speak to their employees about possible solutions.

In the Miller case, for example, the employee could have used a separate space but preferred to express in her own office, which she modified for privacy by covering the windows. Indeed, such arrangements can be ideal for both employee and employer, where it may not be possible for an employer to set aside space that is exclusively designated for nursing mothers to express. Other employers have created private spaces by installing curtains, putting up screens, re-purposing closets or alcoves, and utilizing tents or other temporary structures. Employers should think creatively given that very little space is needed to afford a female employee the privacy she needs to express milk.

In addition, employers should stay apprised of state and local legislation that may impose requirements beyond those contained in the FLSA. By remaining aware of employees’ needs and the laws that govern their relationships, employers can be best positioned to avoid conflict, rather than having to react to it.

Katharine Parker is a partner at Proskauer Rose and co-head of the employment law counseling and training and government regulatory compliance and relations groups, and Jacquelyn Weisman is an associate in the labor and employment department.

Endnotes:

1. 29 U.S.C. §207(r).

2. H.R. 3531, 105th Cong. (1998).

3. H.R. 1163, 106th Cong. (1999).

4. H.R. 3861, 106th Cong. (2000).

5. H.R. 285, 107th Cong. (2001).

6. H.R. 2236, 110th Cong. (2007); H.R. 2122, 109th Cong. (2005); H.R. 2790, 108th Cong. (2003); S. 418, 108th Cong. (2003).

7. 42 U.S.C. §2000c et seq.

8. See, e.g., Derungs v. Wal-Mart Stores, 374 F. 3d 428 (6th Cir. 2004); Vachon v. R.M. Davis, 2004 U.S. Dist. LEXIS 6339 (D. Me. April 13, 2004); Martinez v. NBC, 49 F.Supp.2d 305 (S.D.N.Y. 1999).

9. 29 C.F.R. §825.

10. 29 U.S.C. §2611(2)(A).

11. See, e.g., Conn. Gen. Stat. §§31-51kk–31-51ll.; D.C. Code §32-501; Minn. Stat. §181.941; N.J. Stat. Ann. §34:11B-4.

12. Ark. Stat. Ann. §11-5-116 (2009).

13. Colo. Rev. Stat. §8-13.5-101 et seq. (2008).

14. Breastfeeding Laws, National Conference of State Legislatures, http://www.ncsl.org/issues-research/health/breastfeeding-state-laws.aspx (last visited Feb. 1, 2013).

15. Miller v. Roche Surety & Casualty, No. 12-cv-10259 (11th Cir. Dec. 26, 2012).

16. Salz v. Casey’s Marketing, 11-cv-3055 (N.D. Iowa. July 19, 2012).

17. Department of Labor, Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073, 80078 (Dec. 21, 2010).

18. U.S. Dept. of Labor: Wage & Hour Division, Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, available at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.

19. Abigail Rubenstein, "DOL Cracking Down on Break Space for Nursing Moms," Law 360 (Jan. 29, 2013, 8:00 PM), http://www.law360.com/employment/articles/410995?nl_pk=783aad2d-448c-456d-8195-ecd7fcf9efa0&utm_source=newsletter&utm_medium=email&utm_campaign=employment.