By Haley A. Smith
While the Patient Protection and Affordable Care Act is most commonly known for its health insurance mandate, the Act also amended the Fair Labor Standards Act to require employers to provide rest breaks and space for nursing mothers to express breast milk at work. Although employees cannot directly sue employers for failing to comply with these requirements, employers should nevertheless take steps to comply and avoid associated retaliation claims, by implementing a Nursing Mother Policy.
Section 4207 of the Patient Protection and Affordable Care Act provides that employers must provide nursing mothers with the following:
- Reasonable break time to express milk for one year after her child’s birth each time such employee has a need to express breast milk; and
- A private space, other than a bathroom, that is shielded from view and free from intrusion of others, to express breast milk. The space must also be functional for expressing breast milk (i.e., place to sit, place to put pump, and access to electricity), and available when needed.
Although employees do not have a private right of action to enforce Section 4207, employees may file a complaint with the Department of Labor, which may seek injunctive relief on the employees’ behalf.
Notwithstanding the absence of a direct remedy for employees, employers still risk liability for non-compliance, and because failure to do so can create the foundation for a retaliation claim. For example, in Salz v. Casey’s Marketing Co., No. 11-CV-3055-DEO, 2012 WL 2952998 (N.D. Iowa July 19, 2012), an employee stated a viable retaliation claim against her employer for complaining to the employer (not the Department of Labor) about inadequate space for expression of breast milk, then claimed constructive discharge by virtue of the employer’s failure to provide an adequate space to pump breast milk. The employee was entitled to seek lost wages and an additional equal amount as liquidated damages.
In addition to potential liability for retaliation claims, some state laws provide a private right of action for nursing mothers who are not provided with reasonable break time or space to express milk. Employers should review the laws of the jurisdictions in which they operate to ensure compliance.