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Employers stay on top of new nursing law

Some restaurant employers are scrambling to provide new accommodations for nursing mothers to satisfy a little known requirement in the federal health care reform enacted in March.

Specifically, all employers are required to provide a private place for nursing mothers to express milk effective immediately, according to legal experts.

“The requirements of the new law are quite simple: A mother who is nursing her child is entitled to take reasonable breaks each time she needs to express milk, and her employer must provide a private place — other than a bathroom — to do so,” said Cara E. Greene, a lawyer with Outten & Golden LLP
in New York.

The definition of “private place” is one “shielded from view and free from intrusion from co-workers and the public,” she said.

While some operators expressed concern about adequately meeting the requirement, others said they already have such designated areas.

“Over the years we have always had nursing mothers within our business and have done everything needed to accommodate [them],” said Mike Speck, vice president of human resources and training for Qdoba Mexican Grill, a 525-unit fast-casual chain based in Denver.

“In the restaurants, we have the manager office available as needed, and at our Restaurant Support Center we’ve recently done a small remodel that has a ‘family room’ for nursing mothers,” Speck said.

Other operators said they have taken extra steps to provide secure areas for files and documents in managers’ offices before turning such spaces into an area for expressing.

Greene said all employers fall under the law, no matter their size. However, she said, employers who have fewer than 50 employees do not have to comply if they can show that it would cause them an undue hardship “by causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

Section 4207 of the health care reform bill makes national what was already a requirement in nearly half of the country, Greene noted.

“The requirements of the law are not all that novel,” Greene said. “Twenty-four states already have similar laws on the books.  For instance, in 2007, New York implemented New York Labor Law 206-c, which requires employers to make a reasonable attempt to provide a private location for employees to express milk.”  

She said concerns were raised at the time in New York “that small coffee shops and restaurants would not be able to comply with the law, but with a little ingenuity and flexibility, they were able to find a way.

“For instance, most restaurants have a manager’s office that can be used for the minutes it takes to pump milk, or adjoining workplaces can make arrangements to share space,” she said.

Greene said the U.S. Labor Department would be issuing regulations to provide employers guidance on how to comply with the law.

The U.S. Labor Department will be issuing workplace lactation guidelines for businesses, but the nonprofit U.S. Breastfeeding Committee offers these suggestions for meeting the requirements of the new law:

  • Designate a space with a sign and a means to reserve it on a calendar.

  • Provide temporary use of a manager’s office in fast-food restaurants or settings that lack other spaces with a locking door.

  • Curtain off an area that is non-accessible to the public and meets the privacy threshold because of a clear, well-communicated policy to co-workers. This can even mean a chair behind a curtain in an employee-only area if there is no other space available.

  • Designate a space that serves employees from several employers, such as those in employee-only areas of malls, airports and retail strips.

  • Reach an agreement between worksites, where a breastfeeding employee can visit a neighboring business to access a designated space within.

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