WASHINGTON - The federal Fair Labor Standards Act (FLSA) now compels covered employers to grant break time to a worker for the purpose of expressing breast milk for a nursing child. The employer also must provide a suitable location for her to do so. This obligation is contained in the new FLSA Section 7(r) that was buried in a little-noticed part of the Patient Protection and Affordable Care Act. Apparently, the provision took effect immediately when the law was signed on March 23.

Employers need not pay for the break. No minimum break length is specified, but the break must be a "reasonable" length of time. Employers are required to provide places for the breaks that are "shielded from view and free from intrusion from coworkers and the public," and the location cannot be a bathroom.

The employee must be permitted to take a break each time she needs to express milk. The break requirement extends for one year after the child is born.

An employer with fewer than 50 workers would be excluded from the requirement if allowing the breaks would cause "undue hardship." This condition is met only if the employer will face significant difficulty or expense in light of the employer??s size, financial resources, nature or business structure. "We anticipate that this high standard will likely be a hard one to meet as a practical matter," said John Thompson of Fisher & Phillips LLP.

Section 7(r) most likely does not apply to employees who are completely excluded from the FLSA??s overtime section. For example, this would be the case as to those who qualify for one or more of the executive, administrative, professional, or "outside salesman" exemptions. However, employers should approach this on an exemption-by-exemption basis, because some FLSA exceptions are more-limited in scope.

It is not clear what might be the full range of potential liabilities for failing to comply with this provision. Presumably, an employer could at least face U.S. Labor Department civil penalties of up to $1,100 for each willful or repeated violation, and the agency could seek a court injunction requiring compliance. Substantial liability also could flow from an employer??s having retaliated against a worker who asserts her right to this break.

A number of states already require these kinds of breaks. Section 7(r) does not override any such laws that extend greater employee protections than it does.