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So Far, Health Reform Gives Rights to Nursing Moms

Tuesday, April 19, 2011

For over a year, nursing women have had the right to take breaks to express breast milk during the workday if they work for certain employers. But until both parties can agree on health care reform, working nursing moms have a lot at stake.

Subhead: 
For over a year, nursing women have had the right to take breaks to express breast milk during the workday if they work for certain employers. But until both parties can agree on health care reform, working nursing moms have a lot at stake.



(WOMENSENEWS)--OK. You or someone you know had a baby not long ago and there's been a lot of contented, happy, breastfeeding bonding going on.

Maternity leave is ending soon and the alien land of paid employment looms.

If you are worried that your own reentry into the workplace--or that of someone else--will disrupt breastfeeding, you might be right, but you also might be wrong.

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Although an 11th-hour compromise was reached to avoid a federal government shutdown on April 8, the 2012 federal budget plan put forth by House Budget Chairman Rep. Paul Ryan of Wisconsin clearly shows the GOP's intentions to attack health care reform in whatever way possible.

While the portion of health care reform that offers benefits to nursing women in the workplace is not specifically at issue, Ryan's budget reopens the big battle over health reform.

Until both parties can agree on health care reform, medical insurance rights will remain uncertain. So nursing women and their advocates have a lot at stake in what goes on in Washington in coming months.

In the meantime it's important to understand what the breastfeeding law could mean to you or someone you know.

Don't be embarrassed by what you don't know. As an employment lawyer focused on parents, I'm finding that many people are unaware of this new federal protection.

And whatever the laws, many nursing women give up breastfeeding before they would like because they shrink from pushing an employer to accommodate a law, whether state or federal. But knowing the law is a big start to making the best, healthiest decision for your family.

Immediate Breastfeeding Rights

On March 23, 2010, the Patient Protection and Affordable Care Act, otherwise known as health reform, was signed into law.

Many of its provisions won't take effect for years. But a new breastfeeding right took effect that day, which promises to have a large impact on many businesses, women and children in this country.

Upon signing the bill, the Fair Labor Standards Act was immediately amended to require certain employers to provide reasonable break time and a private place (other than a bathroom) for nursing mothers to express breast milk during the workday for up to one year after the child's birth.

In doing this, the federal government joined 24 states, the District of Columbia, Puerto Rico and 120 other countries, all of which have laws upholding breastfeeding rights in the workplace. Better late than never.

An employer is affected by the law if it fits either of these two broad categories:

  1. No. 1: Annual sales or measurable business of at least $500,000.
  2. No. 2: A hospital, businesses providing medical or nursing care for residents, schools and preschools and government agencies.

Employees are also covered by the breastfeeding "break-and-space" law if their work regularly involves them in commerce between states (which includes, among other things, producing goods that will be sent out of state or regularly making telephone calls to persons located in other states).

One warning note: if your employer has fewer than 50 employees he or she has a right to claim an exemption based on hardship. However, the Department of Labor will not grant an exemption until after an investigation. So your employer would have to go out of its way to prove why it can't meet the law. And that could encourage compliance.

Interesting Aspects

There are some other interesting aspects of this law.

The United States government has decided that breastfeeding is not necessary for children past the age of 1.

Although the consensus in the medical community is that breastfeeding provides major health benefits for both women and children for as long as the breastfeeding relationship continues, the law stops after a child's first birthday. It's a part of the law that could be improved, as time goes by--and if health reform doesn't get ransacked by the GOP's budget-cutting.

Another issue is the "We'll let you pump, but we're not going to make your employer pay you for it" mentality. The law does not require an employee to be compensated for any time spent pumping during the workday. However, there's nothing to stop a worker from using her paid break time to express breast milk.

Women are entitled to "reasonable" break time for their pumping needs. This means covered employers must provide reasonable break time "each time such an employee has the need to express breast milk." Women should feel entitled to take the time they need when they need it.

A Private Place Required

Employers must provide a private place for women to pump. And it can't be the bathroom. And it must be shielded from view and free from intrusion from coworkers and the public. The Department of Labor's initial interpretation of this requirement is that it requires employers, where practicable, to make a room (either private or with partitions for use by multiple nursing employees) available. Where it is not practicable, a space can be created by partitions or curtains. Any windows in the area must be covered. At a minimum, the space should contain a place to sit and a flat surface on which to place the pump. Ideally, the space should provide access to electricity so that a pump can be plugged into an outlet.

So, what do you do if you are an exempt worker, have a child over the age of 1, work for an employer that is not covered by the Fair Labor Standards Act or have an employer claiming hardship?

The first step is to see if your state laws provide greater protection. The National Conference of State Legislatures has a good summary of the various state laws that protect breastfeeding women.

If you feel your breastfeeding rights under the Health Care Legislation have been violated, the next step is to file a complaint with the Wage and Hour Division of the Department of Labor by calling 1-866-487-9243.

This law has now been in effect for just over one year. Its passage was an important step forward in the continued work towards equality in the workplace. Let's hope it doesn't get torn up in the highly partisan battles that are gripping the country.

Breastfeeding is good for the nation's health and that makes good, long-term business sense.

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Lisa Pierson Weinberger is an employment lawyer and the founder of Mom, Esq., a law firm dedicated to the needs of parents. More information about Lisa and Mom, Esq. can be found at http://www.momesquire.com.