Editor’s Note: William Joseph Austin, Jr. is a member of the Labor and Employment Practice Group at Ward and Smith, P.A.

The Patient Protection and Affordable Care Act was signed into law on March 23, 2010. A provision became effective immediately that requires employers who are subject to the Fair Labor Standards Act ("FLSA") to provide mothers reasonable break time to express milk for their infants who are up to one year old. This article will answer some basic who, what, when, and where questions about the new law and dispel some of the misconceptions associated with it.

Because this provision has been enacted as a part of the FLSA, it is important to consider briefly the bigger picture in which the new law fits. The FLSA is the federal law that sets minimum wage and overtime requirements on employers and employees in interstate commerce. Employees who are actually engaged in interstate commerce are subject to the FLSA (e.g., employees who manufacture, service, handle, ship, or receive goods which move across state lines, as well as employees who regularly cross state boundaries or routinely use the telephone or the mail while performing work), regardless of the size of the employer. In addition, all of a business’s employees are deemed to be involved in interstate commerce if the business has some employees who produce, handle, work on, or sell goods that have been moved in, or were produced for, interstate commerce and the business has gross revenues in excess of $500,000. Some employers (and their employees) are always covered by the FLSA even if their gross revenues are less than the statutory minimum, such as hospitals, rest homes, mental institutions, schools, colleges, and universities. The coverage of the FLSA is so wide and deep that employers who think they are exempt would do well to double check with legal counsel, unless their business is cooking free range pigs for friends and family off a country road in a mid-state county.

The new law is added as a subsection to Section 7 of the FLSA which contains the basic time-and-one-half overtime provision and other wage and hour regulations. The new subsection requires employers to provide reasonable break time for employees to express breast milk for nursing children for one year after the child’s birth, "each time such employee has need to express the milk," as well as a place to do so that is shielded from view (other than a bathroom) and free from intrusion from coworkers and the public.

It is a misconception that employers with fewer than 50 employees are totally exempt from the law. Instead, the law provides a limited exception for employers with fewer than 50 employees if the requirements "would impose an undue hardship by causing the employer significant difficulty or expense." Factors to be considered in making that determination are "the size, financial resources, nature or structure of the employer’s business."

This limited exception for smaller businesses applies to the time requirement and the space requirement. Consequently, the exception may play out in a number of ways based on the facts of the case. For example, a small business that historically has made efficient use of space for operations would not have to add on a room to comply with the new law. An example is a restaurant, whether it serves fast food or provides elegant dining. Besides the areas for preparing food and serving customers, it may have only toilets for customers, perhaps separate toilets for employees, and a pantry for storage of inventory. The space constraints and low profit margins could make strict compliance with the new law impossible for the restaurant, but the wording of the exception seems to invite creative solutions.

The new law does not require space behind a locked door, only space that "is shielded from view and free from intrusion from coworkers and the public." A restaurant, therefore, could comply by installing a curtain and a sign reading "Keep Out When Closed." In other words, the space, "shielded from view and free from intrusion," may require not much more than something like a department store dressing room. Sensibility and sensitivity on this point may be informed by the not uncommon experience of seeing mothers nurse their babies in public, shielded from view by no more than a strategically placed shawl or blanket.

A concession to employers is found in a provision of the new law that relieves employers from an obligation to compensate employees during such a break. For the time to be non-compensable, however, the same rules that apply to bona fide meal time likely will have to be observed. Specifically, employees will have to be afforded sufficient time to effectively perform the act, completely relieved from duty. Also, the "predominant benefit" test likely will not apply to breaks for expressing breast milk. The new law specifically requires freedom from intrusion by coworkers. Employees should not be required to answer any questions, monitor calls, or experience similar work related interruptions.

Problems may arise in the coordination of breast-pumping breaks with other break time allowed by employers. One possible solution to anticipated inefficiencies would be a requirement that breast-pumping breaks take the place of breaks otherwise allowed by the employer. (Note: Contrary to the belief of many, the FLSA itself does not otherwise require any other breaks for an employee.)

Employers on both sides of the 50-employee threshold will do well to re-think these issues of workplace time and space management with an accommodating attitude toward new mothers who return to work. Immediate attention should be given to employee handbooks that provide for employee break time as these rules likely will have to be updated.

© 2010, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. William Joseph Austin, Jr. practices in the Labor and Employment Practice Group where he concentrates his practice in labor and employment law, workers’ compensation, and employee benefits. Comments or questions may be sent to wja@wardandsmith.com