Balancing Expectations – Enforcing “Reasonable Break Time for Nursing Mothers” (Week 7)

The Affordable Care Act: Addressing the Unique Health Needs of WThe 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).

  1. 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.
  2. 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.
  3. 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.

Closing thoughts

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.

References

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).

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6 thoughts on “Balancing Expectations – Enforcing “Reasonable Break Time for Nursing Mothers” (Week 7)

  1. Angie, I definitely should have referenced your article when writing mine, in regard to what is still wrong in the world of breastfeeding. Again you bring up the excellent point of how the US fails miserably in terms of supporting families. One of my favorite graphics shows how we give no national paid leave, yet Mexico and Pakistan give 12 weeks. Of course, this doesn’t automatically convert into high breastfeeding rates but it sure helps establish a good supply before mom has to navigate the workplace issues. That being said, progress is being made, albeit slowly and California is leader of the western pack! Come on Arizona, let’s go!
    See: http://thinkprogress.org/health/2012/05/24/489973/paid-maternity-leave-us/

    • Sorry for the lateness of my reply, I got to spend yesterday getting poked and prodded and x-rayed to diagnose pneumonia. It speaks volumes about our priorities (or lack thereof) in supporting healthy families in this country to have no paid leave. It flies in the face of so many companies and institutes discussing “work life balance.” Leave is just the first component of this value of healthy families. Childcare is exceptionally important – and expensive. Even for childcare providers or facilities providing only the absolute minimum of social, nutritional, and developmental support, the cost of child care in Arizona is between $100-183 a week, with the first year of baby’s life being the most expensive. For that first year of care, a family is looking at $8,000-9,000 in care costs for 46-52 weeks of care. It makes the efforts of supporting families feel like a series of tunnels, where the light at the end of the tunnel is only ever a break!
      In the UK and many of the countries listed in the link you provided, there are ALSO benefits for child care and support or requirements for employers to provide on sight or at hand child care. The nearest childcare to the Down Town ASU Campus is at a busy intersection at 7th Street and McDowell, a 10-15 minute one way trip, and they rarely have openings for children under school aged. In the down town Phoenix area in general, there are 48 registered childcare facilities, 26 of which are private programs costing well over the state average, only 26 of which will take infants, and there are 66,000+ employees in downtown. This just doesn’t add up!

      https://www.gov.uk/help-with-childcare-costs

      http://www.arizonachildcare.org/families/childcare-costs.html

      http://childcarecenter.us/arizona/phoenix_az_childcare

  2. So am I understanding this correctly? The “reasonable break time” provision only applies to those employees who qualify for FMLA? I thought this was a policy applying to the employer, with 50 or more employees, regardless of the employment status of those employees. If it is based on FMLA, that could mean that one employee qualifies and another one does not. I hope I have misunderstood and you will set the universe right for me again.

    • You are, unfortunately, correct in your reading. This provision of the ACA applies to all employers included in the FMLA (50+ employees for at least 20 of the last 52 weeks, or any public service employer). I am hopeful that because this provision is an amendment to the enforcement portion of the FMLA, that it will have more universal coverage for employees than the leave grants. For instance, you do not qualify for full FMLA benefits unless you have worked for the employer for 12 months, 1250 hours, and/or live within 75 miles of the site that employs 50 or more employees, but the ACA provision does not specify that the employee had to have taken or qualified for FMLA to be protected. It would be really nice to have a plain language summary of all of this, unfortunately, the vague wording of the provision apparently makes this impossible.

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