Health care reform bill requires break time for nursing mothers

Q&A with Nathan Whatley

published in The Oklahoman | August 13, 2010

McAfee & Taft labor and employment attorney Nathan Whatley was featured in The Oklahoman discussing one of the less-publicized provisions of the Patient Protection and Affordable Care Act that requires employers to provide reasonable break time and other accommodations to nursing mothers.

Under Oklahoma law, nursing mothers could already use unpaid break and meal times, as well as any facility in which she has the right to be, in order to breast-feed or express milk at work.  Under the Patient Protection and Affordable Care Act, break time must be provided, regardless of frequency and duration, to nursing mothers for up to one year after the child’s birth.  Employers must also provide a location, other than a bathroom, that may be used by the employee to express breast milk.

An employer does not, however, have to compensate an employee for her break time when it would not otherwise be compensated.  According to Whatley, “where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.”

Whatley went on to say the break time requirement does not apply to employers with fewer that 50 employees.  However, the employer must be able to show that compliance would create an undue hardship.  He told The Oklahoman, “An undue hardship is not precisely defined but would exist if the difficulty or expense of compliance for a specific employer would be unduly burdensome in light of the size, financial resources, nature and structure of the employer’s business.”