The Patient Protection and Affordable Care Act (ACA) has been a controversial first chapter in National healthcare reform. The aims of this legislation are to increase stability of the current healthcare infrastructure, bolster programs aimed at preventive care, and to improve affordability of coverage for those who do not otherwise have realistic access. One of the preventive care provisions of ACA Section 4207 “Reasonable Break Time for Nursing Mothers” as an amendment to section 7 of the FMLA. Having a provision does not equate to immediate, comprehensive, or even good faith attempts to comply. Challenges with implementation stem from a significant lack of specific verbiage within the legislation.
Interpretation of the philosophy and intention of laws by appointed resource managers and agencies greatly influences the regulations drafted and enforced to realize the goals of the legislation (Kraft & Furlong, 2013). Legislation with specific and action-oriented verbiage interpreted and regulated by agencies which align with the views of the governing executive responsible for enacting legislation often find expedient and thorough implementation (Kraft & Furlong, 2013; Murtagh & Moulton, 2011). In situations where verbiage is less clear and/or agencies or executives are balancing complex and frequently economically motivated expectations of constituents and special interests, implementation may never be realized (Kraft & Furlong, 2013).
As an amendment to FMLA section 7 – Fair Labor Standards Act (FLSA), Section 4207 suffers at the outset from 3 of 4 distinct and critical limitations to supporting increased breastfeeding in the workplace identified by Murtagh and Moulton (2011).
- Only 50-60% of lactating employees with children less than 18 months old are entitled to FMLA/FLSA due to length of time in the current job, number of hours worked, proximity to place of employment, and exempt status.
- Those who are not likely to be covered by existing FMLA protections are also those least likely to breastfeed based upon correlation of race, age, education, and income.
- FMLA leave is unpaid. It is already widely known that children born to families of higher income are more likely to be breastfed at all and for greater duration. Failing to provide more support for paid leave fails to address this critical gap in support.
The fourth barrier identified by Murtagh and Moulton pertains to inflexibility of breaktime for expression of milk, which is alleviated by the ACA – in theory.
The Federal agency responsible for implementation of section 4207 is the Wage and Hour Division (WHD) of the Department of Labor. As of February 27, 2014, the WHD has made no effort to issue regulation regarding what “reasonable break time” means. The United States Breastfeeding Council provides a link to Fact Sheet 73 from WHD, although this resource fails to provide any specific guidance or to do much more than quote section 4207. Further content by USBC provides links to resources for bringing complaints against employers for failing to comply with section 4207. There have to date been at least 169 workplace investigations, 71 confirmed violations, and there a growing number of lawsuits regarding failure to comply. One of these cases, supported by the ACLU, which has already provided recommendations on section 4207, on behalf of Bobbi Bockoras of Pennsylvania, recently made National news in an NBC Special Report.
Section 4207 is a small start. It fails in language to include all lactating persons, to provide enforceable action items, and to provide specific recourse for those who are discriminated against. A greater good would come of expanding and substantiating the benefits provided for under the FMLA and FLSA to include paid leave and flexible scheduling where applicable, and to reduce the number of employees who would benefit from lactation accommodation who are currently excluded from FLMA and FLSA. It is essential that gaps in implementation and mechanisms for penalizing companies failing to comply be addressed.
Kraft, M. E & Furlong, S. R. (2013). Public policy: Politics, analysis, and alternatives. Washington, D.C: CQ Press. Fourth Edition.
Murtagh, L. & Moulton, A.D. (2011). Working mothers, breastfeeding, and the law. Government, Politics, and Law. Vol 101 (2).