Contributed by Scott R. Leah

One of the provisions of the new health care legislation recently enacted by Congress and signed by the President which has not received much publicity is a section that amends the Fair Labor Standards Act to include a guarantee of "a reasonable break time for an employee to express milk for her nursing child for 1 year after the child’s birth each time the employee has a need to express the milk."

Employers must permit the employee to do so in "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public." 

There is no provision that employees be paid for that time, but they must be given unpaid break time to do so.

An employer need not do so if it has less than 50 employees and to permit this would pose an "undue hardship" on the employer. However, the burden will be on the employer to prove that it would truly be an "undue hardship."

The Department of Labor will undoubtedly issue further regulations implementing this new law. For example, the law does not require that employees be given access to a place to store the expressed milk, define what is a reasonable break time, or define what is an appropriate place to do this. 

For now, employers should immediately ensure that unpaid break time is being provided to employees in that situation, and should make reasonable efforts to provide a private place for such employees.

We will further update you when new regulations are issued.

If you have any questions about the Fair Labor Standards Act, please contact Scott Leah at (412) 594-5551 or