The Patient Protection and Affordable Care Act, commonly referred to as the Healthcare Reform Act, contains provisions that amend the Fair Labor Standards Act by requiring employers to give reasonable break time for nursing mothers to express breast milk for the first year following childbirth. Last week, the Department of Labor's Wage and Hour Division issued a Fact Sheet providing information for employers on these new requirements.

The new law only applies to employees not exempt from the FLSA's overtime pay requirements, although DOL warns employers that state laws may afford additional protections to exempt employees. In addition to the break times, employers must provide nursing mothers with private spaces free from intrusion by the public or co-workers to express milk. These spaces do not have to be permanently dedicated for this purpose, but employers may not designate bathrooms to fulfill this requirement.

Employers with fewer than 50 employees do not have to comply with the new requirements if they can demonstrate an undue hardship. DOL describes this burden by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure of the employer's business.

Employers do not have to pay employees for breaks taken under the new law, but must allow employees provided with paid breaks to use the compensated time off for this purpose.  If the employee is not paid during these breaks, she must be relieved of all job tasks.

DOL's Fact Sheet can be found at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.