Consequences for violations of ACA breastfeeding law becoming gradually clearer

Posted on October 5, 2012 by Leigh Anne Benedic

Employers still wondering about the effects of providing a private area for nursing mothers to express breast milk are getting a little more clarity on the enforcement scheme of that law under a recent decision from a federal court in Iowa.

We kept you updated on the new requirements under the Affordable Care Act (ACA) for employers with nursing mothers and provided more detail earlier this year when the federal Department of Labor started enforcing it. However, there are still many unanswered questions about this law—the DOL has not yet issued any regulations, and it's still not quite clear how these requirements will interact with existing wage and hour law. One example is enforcement—may aggrieved employees sue in court or must they follow a different process?

It was this last question that the Northern District of Iowa recently addressed. In Salz v. Casey's Marketing Co., the employer provided an office area to its employee who needed to express breast milk during the workday. The employee was told that the office was private and secure, but she later discovered that a video camera was in the room. She told her employer about the camera, stating that she was concerned about the lack of privacy. Her employer then told her to put plastic bag over the camera and refused to provide any other accommodations, including disabling the camera. Because the employee remained uncomfortable knowing that the camera was still in use, she was unable to express as much milk as before to meet her infant's nutritional needs. The employee quit, then sued her employer for its alleged violation of the recent requirements to provide a private area to express breast milk and constructive discharge in retaliation for her complaints about the violation.

The court dismissed her claim for the alleged violation of the ACA requirements. Because the ACA provided no enforcement mechanism for its nursing mother provisions, the plaintiff was limited to the remedies under the Fair Labor Standards Act. The FLSA allows employees to sue only for unpaid wages, and she lost no wages as a result of the violation. Instead, the court said that an aggrieved employee must notify the DOL, who may then bring a suit to require the employer to comply—but, no damages would be available to the employee as a result of the underlying violation.

However, lost wages can result from retaliation against an employee who complains of her employer's violation of the requirements for nursing mothers. The court allowed this claim to survive on that basis.

This decision highlights two issues for employers: first, that employees may still sue in court if employers retaliate against them for complaining about violations of the ACA requirements; and second, although employees cannot sue for ACA violations directly, the DOL has the ability to investigate any complaints and can file suit to enforce the law. As new developments emerge in this area, we will keep you in the loop.
 

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Department of Labor Begins Enforcing Requirement that Employers Provide Breaks to Nursing Mothers

Posted on February 1, 2012 by Jamie LaPlante

The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect. While there was little guidance about the law at that time, the Department of Labor has provided a little more direction since then. However, there are still no formal implementing rules for the requirement.

The health care reform law passed in 2010 amended the Fair Labor Standards Act requiring “reasonable” break time for employees who are nursing mothers. The general requirements are as follows:

  • The employee must be a non-exempt employee under the FLSA.
  • The nursing mother’s child must be 1 year old or younger.
  • Breaks must be provided as frequently as needed by the nursing mother.
  • The duration of the breaks “may vary” as needed but no specified time period is set forth in any Department of Labor guidance.
  • A place must be provided that is “shielded from view and free from intrusion from coworkers and the public” that is not a bathroom. The space need not be designated for this purpose at all times, but it must be available when the nursing mother needs it. If the employer has no nursing mothers, the employer does not need to maintain dedicated space for nursing mothers.

This federal law does not apply to employers with fewer than 50 employees if compliance would impose an undue hardship, looking at the difficulty or expense of compliance given the size, financial resources, nature, and structure of the employers’ business. In determining if an employer has 50 employees, all employees, regardless of work site, are counted.

There was some confusion about compensation for nursing mother breaks. Employers are not required to compensate employees for these breaks, but if they provide paid break time, they must compensate an employee who uses that time to express milk the same way as other employees are compensated for their break time. If an employee is not released from all job duties, she must be compensated. Many employers follow the general practice that breaks under 20 minutes are compensated, but longer breaks are not. Whether an employer is required to compensate an employee during her break, however, becomes more complicated if the nursing mother takes longer than a 20 minute break. The Department of Labor has not yet released more specific guidance on this topic.

This law does not preempt state laws that provide greater protection to nursing mothers. And some state laws may provide break time for exempt employees or for employees beyond 1 year after the child’s birth or require that smaller employers provide break time. For Ohio employers, Ohio’s nursing mother protection statute, is more general, requiring places of public accommodation permit a mother to breastfeed in any place of public accommodation where the mother is permitted. Employers with places of public accommodation (restaurants, stores, banks, etc.) should be mindful of this statute as well.
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DOL Issues Guidelines on New Requirement for Break Time for Nursing Moms

Posted on July 27, 2010 by Mike Underwood

The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time... each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a bathroom, for purposes of the break.

The FLSA requirement for reasonable break time applies only to non-exempt employees.  However, employers should consider that refusal to provide reasonable break time to exempt workers for expressing milk might be difficult to explain from an employee relations standpoint.  Also, as noted below, there might be state or local laws that require break time for all nursing moms.

Employers are not required to provide paid breaks to nursing moms.  However, if a company does provide paid breaks, then nursing moms must be permitted to use the paid break for expressing milk.  Also, consistent with the general rules under the FLSA, in order for break time used to express milk to be unpaid, the employee must be completely relieved from work duties during the break.
 
Employers with less than fifty (50) employees are exempt if they can show that providing the breaks will cause an "undue hardship," measured by the cost and difficulty of compliance, the nature of the business, and the company's finances.

This change in the federal FLSA does not preempt any state or local laws governing time off for nursing moms.  Employers should be aware of state and local laws that might require paid time for this purpose or include other protections not included in the FLSA amendments.  Ohio does not have any state law dictating break time for nursing moms.  The Ohio Supreme Court had an opportunity in Allen v. Totes/Isotoner decided in 2009 to consider whether a refusal to provide break time to express milk violates Ohio's sex discrimination law.  But, the Court avoided the issue, dismissing the employee's case because she had not explicitly told her employer that she needed the breaks for nursing.
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A Provision of The Health Care Reform Bill Requires Employers to Provide Reasonable Breaks for Nursing Mothers

Posted on April 5, 2010 by Jenny Swinerton

Employers may not realize that the recently signed health care reform law includes a provision which amends the Fair Labor Standards Act to require reasonable unpaid breaks for nursing employees. In addition to the unpaid break time, the amendment to the FLSA (29 U.S.C. § 207(r)(1)) provides that employers must furnish a private location, other than a restroom, which may be used by the employee to express breast milk. Employers with fewer than 50 employees are not subject to these requirements if such requirements would cause an undue hardship on the employer.

This amendment creates some confusion with existing federal law on the issue of employee breaks. While the FLSA does not require that employees be given breaks, there are federal regulations which indicate that rest periods of short duration (usually lasting 5 to 20 minutes) are considered compensable work hours. The proposed amendment, however, specifically states that employers are not required to compensate nursing mothers for reasonable break times.

 

In addition, although many states have passed laws requiring employers to provide nursing mothers with reasonable break time, Ohio’s law addresses only the right to breastfeed in a place of public accommodation. Although Ohio’s breastfeeding law governs the relationship between a place of public accommodation and individuals who are attempting to use the accommodations, employers with places of public accommodation on their premises (i.e., store, restaurant, bank) should be mindful of this law. Also, based on the Ohio Supreme Court decision in Allen v. Totes/Isotoner, it appears that there are at least a few justices who may be prepared to extend pregnancy discrimination laws to nursing mothers.  For a further discussion of the Allen case, please see our previous blog from August 31, 2009.

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