The new Federal Patient Protection and Affordable Care Act of 2010 snuck in a new federal
requirement that all employers provide the following to nursing mothers:
- a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
- a place, other than a bathroom, that’s shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
This new law provides two exceptions:
- employers are not required to pay employees who take a breastfeeding break—unless a state law says otherwise; and
- an employer with less than 50 employees is exempt if the requirements would “impose an undue hardship” by causing “significant difficulty or expense” as compared to the employer’s size, resources and business structure.
Minnesota has had a similar law for approximately 10 years but there are some important distinctions. For one thing, the Minnesota statute simply requires “reasonable efforts” to provide a location, other than a toilet stall, for the mother to express the milk. The new federal law, on the other hand, seems to make finding a suitable location mandatory by declaring that the employer “shall” do this.
In addition, Minnesota merely requires that the location not be a “toilet stall” and that the employee be allowed to express milk “in privacy”. The new federal law mandates a location “other than a bathroom” that is “free from intrusion.” Therefore, even a comfortable lounge area inside a women’s restroom might not be sufficient unless it was physically separated from the rest of the facility to prevent “intrusion.”
Finally, while the Minnesota statute specifically states that the break must, if possible, run concurrently with other scheduled breaks, the federal law contains no such limitation. An argument can be made, then, that this new law authorizes an additional break from female employees who are nursing.
Minnesota employers must be ready to accommodate these new and somewhat more expansive requirements the next time a nursing mother in the work force raises this issue.