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.