Provided by: Judge Ruth B. Kraft



BREAST FEEDING:

The Patient Protection and Affordable Care Act of 2010 (better known as Obamacare) affects employment law in more ways than you might have thought. The Act requires a covered employer to provide a breast-feeding, non-exempt (meaning hourly, rather than salaried) worker with “reasonable break time to express breast milk for her nursing child for one year after the child’s birth each time the employee has need to express the milk.” The U.S. Department of Labor regulations are pending but we already have general information as to the statutory mandate.

Although breaks of 20 minutes or less must be paid under the Fair Labor Standards Act, breaks taken in order to pump breast milk need not be paid—if they are separate from the breaks that you offer to all your workers. Of course, if a nursing mother uses the established breaks for the purpose of expressing milk, that would constitute a qualified paid break. What happens if the employee can’t complete pumping within the period allowed? You do not have to paid her for that extra break or break time so long as she is completely relieved of job duties during the break. If an employee has a private office, rather than a cubicle, posts a sign “Nursing Mother Within-Enter at your own risk!” and then works while pumping, she has to be paid.

It is important to note that, when an employee is breast feeding, you as the employer can’t dictate the time for pumping breaks and must provide them whenever the employee finds it necessary to do so. You also cannot dictate the duration of the breaks.

Finally, the law requires employers to provide a private place in which employees can express milk. Can this be a restroom? Absolutely not! The law excludes bathroom as an appropriate place. The location must be functional for breast pumping, meaning that there must be an electrical outlet and some seating as well as a door which can be locked to prevent intrusion.

Employers with fewer than 50 workers, counting all locations, may be exempt if compliance would constitute an undue hardship, which has yet to be defined and is likely difficult to prove. Multisite employees may not claim exemption for sites which have only a token number of employees.

PATERNITY LEAVE:

Most of you are already aware that the Family and Medical Leave Act (FMLA) guarantees covered workers up to 12 weeks for job-protected leave for the birth of a child or after adopting/fostering a child. But, did you realize that FMLA extends to leave for care of a newborn, up to one year of age, as well and that it covers both men and women? Unless both parents are in your employ, each would be entitled to 12 weeks of leave. In California, which has the strictest laws in the country, employers are required to comply with the state Family Rights Act in addition to FMLA.

I have yet to be asked to craft a custom pregnancy or parental leave policy and subsume these under FMLA and disability leaves. However, it a thought provoking question. If you are not covered under FMLA or want to offer additional employee benefits, I recommend that whatever policy you design be applicable to men and women equally.

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.