While everyone is aware that far-reaching health care reform has recently been signed into law, many employers may not be aware that the Patient Protection and Affordable Care Act also amended the federal FLSA. 

Under one such amendment, nursing mothers who are non-exempt employees are allowed to take “reasonable” break time to express breast milk for up to one year after the child’s birth. Employers are required to provide a private place, other than a bathroom, for this purpose. As Minnesota already has a state law requirement for such breaks, this amendment will not substantially affect Minnesota employers, except that the federal law does not expressly require that the break run concurrently with break time already provided to the employer when possible, as does Minnesota’s law. 

Minnesota’s nursing mother law applies to any employer with one or more employees, while the federal statutes provides that employers with fewer than 50 employees may be exempt from the break requirement if it would impose an undue hardship. Keep in mind that, when both state and federal statutes apply, employers must follow the standard that is more favorable to the employee. 

One lingering question for employers will be whether the breaks are paid or unpaid. The FLSA amendment explicitly states that employers are not required to compensate employees for these breaks; however, the longstanding rule is that breaks of a short duration are considered compensable time worked. Similarly, while Minnesota’s law provides that the nursing mother breaks are unpaid, Minnesota’s wage and hour rules state that rest periods of 20 minutes or less may not be deducted from total hours worked.

Employers are cautioned about assuming that nursing mother breaks are to be unpaid and should treat these breaks consistent with its practice in compensating for other work breaks of similar length.