FLSA Amended To Require Breast Feeding Breaks

The new 2010 health care law, formally known as the Patient Protection and Affordable Care Act, will affect employers in a variety of ways in the coming years. One provision, which received virtually no attention during the months before passage of the new law, will surprise many employers now.

Section 4207 of the new law amends section 7 of the Fair Labor Standards Act (the federal law on minimum wages and overtime entitlement) to mandate now that employers provide “reasonable break time” for a mother to “express breast milk for her nursing child” for up to one year after the child’s birth. Importantly, the break time for this purpose does not have to be paid (unless applicable state law requires), but we expect that many employers will not want to undertake the effort to police employee time in this activity.

The FLSA amendment also requires employers to provide mothers a suitable place other than a bathroom for the purpose of expressing breast milk. The designated place, appropriately, must be private, shielded from view, and free from intrusion by others in the workplace.

The new law applies to all employers subject to the FLSA. However, an employer with less than fifty employees may side-step compliance if these requirements impose an undue hardship on the employer. Presumably, it will be the employer’s burden to show undue hardship by demonstrating significant difficulty or expense.


Posted by Thamer E. "Chip" Temple III

National Defense Authorization Act: FMLA Leave Expanded for Military Families

On October 28, 2009, President Obama signed the National Defense Authorization Act ("NDAA"). The NDAA expands the rights of military service members and their families under the Family and Medical Leave Act ("FMLA"). These changes take effect immediately, so employers who are covered by the FMLA should revise their leave policies to reflect these changes.

First, the NDAA extends coverage for "exigency leave" of up to 12 weeks to the families of all active-duty members of the military who are deployed to a foreign country. Under the military leave provisions adopted in 2008, such "exigency leave" was available only to family members of National Guard members and military reservists.

Second, the NDAA extends the coverage of "service member caregiver leave" available under the FMLA. Such leave now includes caring for a child, spouse, parent, or next of kin who is a veteran undergoing medical treatment, recuperation, or therapy for a serious illness or injury and who was a member of the Armed Forces (including the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes the treatment. The medical treatment the veteran receives must be related to a serious injury or illness suffered while in the line of duty, or which existed before the beginning of the veteran's military service. Under this provision, a caregiver may take up to 26 weeks of leave to care for such an injured or ill veteran.

Employers may contact Bill Norris at (804) 783-6819 or Chip Temple at (804) 783-6814 to learn more about the National Defense Authorization Act or the Family and Medical Leave Act.

Posted by G. William "Bill" Norris, Jr.

Featured Legal Commentator

Chip Temple will be the featured legal commentator at Managed Benefits, Inc.'s comprehensive course on the new Family and Medical Leave Act (FMLA) regulations. For more information on the course, contact Managed Benefits, Inc. at bworthington@managedbenefits.com.

Posted by: Thamer E. "Chip" Temple, III

The New FMLA Regulations

The New FMLA Regulations

New regulations under the federal Family and Medical Leave Act (FMLA) will take effect on January 16, 2009. The regulations are lengthy, spanning more than 700 pages. Here are some highlights.

Continuing Treatment

The concept of “continuing treatment from a health care provider” is an important part of the definition of a “serious health condition,” which in turn is a prerequisite for most types of FMLA leave. Continuing treatment now requires a visit to the health care provider within seven days of the first day of incapacity, two visits within thirty days (absent extenuating circumstances that prevent a timely follow-up), and, with a chronic condition, at least two visits per year.

Employee Eligibility

To be eligible for FMLA leave, an employee must have been employed with the employer for at least twelve months and worked at least 1,250 hours during that time. The new regulations clarify, however, that the twelve months of service need not be consecutive. Prior service without an absence of seven years or longer must be counted toward the twelve month goal. Additionally, if an employer permits an employee to take non-FMLA leave (such as a general leave of absence) before an employee is eligible for FMLA leave, and the employee becomes eligible while on the non-FMLA leave, the leave taken before eligibility does not count toward the twelve week per year FMLA allotment. Rather, the employee in this situation would be entitled to the non-FMLA leave plus the full twelve week FMLA allotment.

Holiday Calculations

Counting holidays towards the FMLA leave allotment depends on timing of the leave taken. The holiday will count toward the allotment if the employee is taking a full week of FMLA leave during the week with a holiday. But if an employee takes less than a full week of FMLA leave during a week with a holiday, the holiday will not count toward the FMLA allotment unless the employee otherwise would have been required to work on that holiday.

Light Duty

An eligible employee may accept light duty instead of taking FMLA leave. If the employee does so, the light duty work does not count against the employee’s twelve week FMLA allotment. Essentially, the employer’s FMLA obligations are deferred until the light duty assignment is completed or the twelve month period in which the FMLA leave is taken has ended.


Authentication and Clarification of Medical Certifications

Select employer representatives now may contact an employee’s healthcare provider directly for purposes of authenticating information on a medical certification form without obtaining an employee’s permission. Subject to HIPAA restrictions, select employer representatives also may contact the health care provider for purposes of clarifying information provided on the certification.

Notice Requirements

Under the new regulations, an employee must adhere to the employer’s usual and customary notice requirements for requesting foreseeable FMLA leave. This can include written notice. An employee’s failure to comply can be grounds in some instances for delaying or denying the requested FMLA leave. Employers, on the other hand, still must provide written notice to employees of FMLA rights by posting and in handbooks or other policy statements provided at the time of hire. Additionally, employers are required to give written notice of employee rights, eligibility and the designation of FMLA leave within five business days of becoming aware of the employee’s need for leave.

Military Service Member-Related Leave

The new regulations explain the various rights and responsibilities under the National Defense Authorization Act, which extends FMLA-like leave for eligible employees (i) to tend to exigencies arising from a service member’s call to duty, and (ii) to care for a family member who becomes ill or injured as a result of military service.

These regulatory changes reflect an intensive effort to balance existing burdens between employers and employees without constricting the basic rights Congress granted more than fifteen years ago. For those dissatisfied on either side, the complaints largely belong with the 1993 Congress, not the regulatory scheme now. However, these regulations do heighten the importance of employers carefully maintaining precise records about FMLA leave, employee eligibility, and employer/employee compliance. In most instances, it is the employer’s obligation to justify actions taken.

Posted by Thamer E. "Chip" Temple III.