New HHS website provides tips for accommodating lactating employees

by Kate DeForest

A lesser-known provision of the Affordable Care Act (ACA) requires employers that are covered by the Fair Labor Standards Act (FLSA) to provide a private area for mothers to nurse or express breast milk during the workday. The U.S. Department of Health and Human Services (HHS) is making the requirement known with a new website from the Office of Women’s Health. The website includes resources for employers that seek to comply with the ACA.

ACA requirements

The ACA amended Section 7 of the FLSA to require employers to provide reasonable breaks for mothers to express breast milk for at least one year following the birth of a child. Employers are required to provide a private space (other than a bathroom) that is “shielded from view and free from intrusion from coworkers and the public” for expressing breast milk. Employers are not required to compensate employees for additional break time used to express breast milk, and employers with fewer than 50 employees are exempt from the requirement if it would impose an undue hardship.

Large employers and employers whose facilities are open to the public may already have permanent nursing/pumping spaces that comply with the ACA. However, most small and medium-sized employers will have to set up a temporary or permanent space the first time a lactating employee makes a request to express milk after returning from maternity leave. The HHS’s website includes a “common solutions” page to assist employers in determining the most cost-effective solution. Examples include:

  • Portable, flexible indoor spaces that offer privacy and can be set up on a temporary basis;
  • Permanent spaces that have multiple uses (for single or multiple users);
  • Outdoor spaces that are temporary and portable;
  • Spaces that are shared with other businesses; and
  • Direct access to baby/work at home.

The website also makes a business case for supporting lactating employees, citing studies that link lower healthcare costs, lower absenteeism rates, and higher employee retention rates for employers that support mothers.

Bottom line

Many states have laws that provide benefits to lactating employees,  so you should check to see if any apply to you. Employers that are covered by the FLSA should be aware of the benefitsspecifically, time and spacethey are required to provide to lactating employees during the first year following the birth of a child. FLSA-covered employers with fewer than 50 employees should be cognizant that the hardship exception will be difficult to meet, especially in light of the availability of temporary, portable shelters that comply with the ACA’s requirement for a private space.

Generally, employers will see the benefits of working with lactating employees to generate a cost-effective solution that provides employees with a level of comfort in the workplace. The HHS’s website, www.womenshealth.gov/breastfeeding/employer- solutions/index.php, contains additional information regarding how some employers have met the ACA’s requirements.

Kate DeForest is an attorney with Sulloway & Hollis, P.L.L.C. in Concord, New Hampshire. She may be contacted at kdeforest@sulloway.com.

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