Compliance Blog

Posted by Anthony Demangone

We've received a number of questions regarding a component of health care reform law that addresses breastfeeding.  In short, the new law will require larger employers (those with 50 or more employees) to provide a location that is shielded from view and free from intrusion.  Smaller institutions are exempt if complying would create an "undue hardship."  Also the rule states that employers are not required to pay employees who take a breastfeeding break, unless state law requires you to do this.  This part of health care reform became effective when the Affordable Care Act became effective on March 23, 2010.  The Department of Labor is seeking comment on this new requirement.   

 It is worth noting that the DOL is aware of how complicated this rule may be for certain employers.  Imagine fast food restaurants, bus lines and construction sites.  Their response shows that while they are interested in feedback, they do expect people to find a way to comply. Here's what they said in their "request for information:"

The Department is aware that there are many work settings that are not in office buildings, and that this can pose unique challenges to providing an adequate space for nursing mothers to express milk. For example, there are nursing employees who work in retail settings, quick service food stores and restaurants, construction or outdoor work sites, factories, or in other non-office building settings. Some of these workplaces may have limited space available to convert into a designated space to express breast milk. In order to meet the obligations of the law, employers need not create a permanent, dedicated space for expressing milk.    

The Department is aware that many such employers have found ways to provide break time and space for nursing employees even though there was no readily available "unused" space. For example, in restaurants and small retail settings, employers have made spaces normally designated for other purposes available when needed by the nursing mother. Malls or retail shopping centers have designated shared space to be used by employees of the various tenant businesses. The Department would appreciate comments that address the conditions under which spaces such as manager's offices, storage spaces, utility closets, and other such spaces normally used for other purposes could be considered adequate spaces for use by nursing mothers under the statute. In addition, the Department solicits comments on the kinds of shared space arrangements that would be acceptable under the law.    

Similarly, the Department would appreciate comments that address how employers can provide adequate break time and space for nursing employees who are not in a fixed place during a work shift (e.g., bus drivers, mail or parcel delivery workers, law enforcement officers, emergency medical technicians, etc.). In general, the Department would appreciate comments that describe creative solutions to providing break time and space for nursing mothers so that we can share these examples more broadly.

NAFCU is not an HR expert, but here are some resources that might be useful. 

• The Department of Labor has a page dedicated to the "nursing mothers" issue.  The page is a wonderful resource that will really clarify what your credit union has to do.  Keep in mind, though, that no regulations have been issued. 
• The page has this "question and answer" document on this issue. Here are 3 of those "questions and answers" that I found fairly useful:

Do employers need to create a permanent, dedicated space for use by nursing mother employees?
ANSWER: No. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is the best way to meet their obligations under the law.  

Do employers have to provide a lactation space even if they don’t have any nursing mother employees?
ANSWER: No. The statute requires employers to provide a space for a nursing employee “each time such employee has need to express the milk.” If there is no employee with a need to express breast milk, then the employer would not have an obligation to provide a space.  

If the only space available at a work site is a bathroom, can employers require employees to express breast milk there?
ANSWER: No. The statute specifically states that the space provided for employees to express breast milk cannot be a bathroom. 

• Finally, it is important for credit unions to consider reaching out to other organizations that might be helpful when looking at HR issues.  Perhaps you have an employee that belongs to SHRM or your credit union belongs to the U.S. Chamber of Commerce.   If so, take advantage of those connections.