Federal Health Care Law Provides for Breaks for Nursing Mothers

One of the lesser known provisions of the recently adopted Patient Protection and Affordable Care Act protects nursing mothers.  Section 4207 of the Act amends Section 7 of the Fair Labor Standards Act to provide for breaks for female employees to express their milk, and requires employers to provide them with a location other than a restroom in which to do so. 

Specifically, employers are required to provide nursing mothers with reasonable breaks any time that they need to express milk for up to one year after their child's birth.  The breaks need not be paid if they occur during working time.  In addition, employers are required to provide nursing mothers with a place (other than a restroom) that is shielded from view and free from intrusion in which to express their milk. 

There is an exception for some smaller employers.  Employers with 50 or fewer employees need not comply with the provision if its requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

While the provision does not impact any FMLA rights, it suggests that Congress may be open to expanding leave for childcare responsibilities beyond the 12 weeks of unpaid leave provided under the FMLA to care for a newborn or newly adopted or foster child. 

President Obama Signs Into Law FMLA Amendment Permitting Airline Pilots and Flight Attendants To Qualify for FMLA Leave

As anticipated, cn December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act.  See my prior post concerning the new legislation. 

Do Employers Run Afoul of the Genetic Information Nondiscrimination Act When Requiring FMLA Certifications?

Guest Post: by Erin Fitzgerald, Esquire

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 ("GINA") into law.  Title II of GINA, which goes into effect on November 21, 2009, covers private, state, and local government employers with 15 or more employees, as well as employment agencies and labor organizations.  Title II restricts the deliberate acquisition of genetic information by covered entities, prohibits the use of genetic information in employment decision-making, requires that genetic information be kept confidential, and places limits on disclosure of genetic information.  However, several exceptions apply to an employer's acquisition and disclosure of information under the FMLA. 

GINA defines genetic information as information regarding:

  1. an individual's genetic tests;
  2. the genetic tests of an individual's family members;
  3. the manifestation of disease or disorder in family members of the individual (family medical history);
  4. an individual's request for or receipt of genetic services or the participation in clinical research that includes genetic services by the individual or a family member of the individual; and
  5. the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Although GINA generally prohibits employers from acquiring genetic information of an employee (including family medical history), the Act provides that the prohibition does not apply to the extent such a disclosure is made inadvertently by an employee when submitting a certification requested under the FMLA.  For example, an individual requesting FMLA leave to care for a seriously ill relative may disclose family and medical history when completing the certification required by the FMLA.  An employer who receives that genetic information would not be in violation of GINA.  However, the genetic information disclosed is still subject to GINA' s confidentiality requirements, and must be placed in a file separate from the employee's personnel file.  The Americans with Disabilities Act ("ADA") also requires that employees' medical records be maintained in a file separate from the personnel file, and an employer may maintain GINA-protected information in the same file in which it maintains an employee's medical information under the ADA.   

A second exception permits disclosure of genetic information when that disclosure is made in support of an employee's compliance with the certification provision of Section 103 of the FMLA.  For instance, if an employee's supervisor receives a request for FMLA leave from an employee who wants to care for a family member with serious health condition, that supervisor may forward that request to individuals with the need to know the information because of responsibilities relating to handling FMLA requests. 

Employers should become familiar with GINA's requirements to ensure that they are not requesting, maintaining, or disclosing genetic information in violation of the Act. 

Erin Fitzgerald is an Attorney in the Labor and Employment Department of Fox Rothschild LLP.  

The Fiscal Year 2010 National Defense Authorization Act Expands Military Leave Under the FMLA ... Again

Yesterday, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which provides, in part, for additional exigency and caregiver leave provisions for military families.  The Act amends the military leave provisions of the FMLA, which were adopted in 2008.  The changes took effect immediately.

The exigency leave benefit (of up to 12 weeks) now will be available to family members of active duty service members in the Armed Forces who are deployed to a foreign country.  Formerly, this exigency leave was available only to family members of National Guard members and reservists. 

In addition, under the Act, the caregiver leave benefit (of up to 26 weeks) now includes leave to take care of a child, spouse, parent or next of kin who (1) is a veteran, (2) is undergoing medical treatment, recuperation or therapy for serious injury or illness, and (3) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date of treatment.  The medical treatment must be related to a serious injury or illness incurred while in the line of duty on active duty in the Armed Forces or which existed before the beginning of military service, and which was aggravated by service in the line of duty while on active duty. 

Employers should revise their FMLA policies and notices to reflect these new amendments and comply immediately.