Initiatives Support Breastfeeding

 

On February 10, 20111, ending a long-running dispute with pediatricians and breast-feeding advocates, the Internal Revenue Service announced that it would grant nursing mothers a tax break on pumps and other breastfeeding supplies. Also, the U.S. Department of Labor has just closed public comment period on a provision of the Affordable Care Act, entitled the "Break Time for Nursing Mothers" law”. The law, currently in effect, requires certain employers to provide reasonable break times and a private, non-bathroom place for nursing mothers to express breast milk during the workday. The DOL will be developing the workplace rules.

The IRS ruling

The IRS ruling, which will affect expenses incurred starting in 2010, will allow mothers to use pretax money from their flexible spending accounts to cover the cost of breast pumps and other supplies. Those without flexible spending accounts may deduct breast-feeding costs if their total unreimbursed medical expenses exceed 7.5 percent of their adjusted gross income and they itemize.

Breast-feeding advocates said the new policy would help millions of working mothers continue breast-feeding after returning to the workplace, and improve the health of infants who receive antibodies from the breast milk.

“Now, more women will be able to pass on the health benefits of breast-feeding to their babies, which include protections against asthma and other respiratory illnesses, bacterial and viral infections, and obesity, among other ailments,” said Dr. O. Marion Burton, president of the American Academy of Pediatrics.

A study by Harvard Medical School last year showed that if 90 percent of mothers followed the standard medical advice of feeding infants only breast milk for their first six months, the United States could save $13 billion a year in health care costs and prevent the premature deaths of 900 infants each year from respiratory illness and other infections. Studies show that breast-feeding is also beneficial for the nursing mother, helping her avoid Type 2 diabetes, ovarian cancer, breast cancer and postpartum depression.

But as recently as last year, the I.R.S. rebuffed those arguments. The I.R.S. code considers nutrition a necessity rather than a medical condition, and the agency’s analysts said they viewed breast milk as nothing more than a healthy food — meaning that breast pumps, bottles and pads were no more deserving of a tax break than a vegetable steamer.

To continue breast-feeding once they return to the workplace, many mothers need to use pumps to extract milk, which can be chilled and fed by bottle to the child later. The pump and the accessories needed to store milk cost about $500 to $1,000 for most mothers over the course of a year, according to the United States Breastfeeding Committee. A survey by the Centers for Disease Control and Prevention found that about 75 percent of the 4.3 million mothers who gave birth in 2007 started breast-feeding. By the time the baby was 6 months old, the portion dropped to 43 percent, and on the child’s first birthday, to 22 percent.

The I.R.S.’ s initial refusal to classify breast-feeding as a medical expense has frustrated women’s health advocates and pediatricians for years, especially since the federal government offers tax breaks on items like acne cream and denture adhesive.

“Break Time for Nursing Mothers" Law

The “Break Time for Nursing Mothers" Law provision of the Affordable Care Act took effect when the ACA was signed into law on March 23, 2010.

Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

The law does not preempt state laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth). 

Time and Location of Breaks

Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.  The frequency of breaks needed to express milk as well as the duration of each break will likely vary.

A bathroom, even if private, is not a permissible location under the Act.  The location provided must be functional as a space for expressing breast milk.  If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public. 

Coverage and Compensation

Only non-exempt employees are covered under this law.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship.  Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.  All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required to compensate nursing mothers for breaks taken under this provision.  However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.  In addition, the employee must be completely relieved from duty or else the time must be compensated as work time. 

For additional information:http://www.wagehour.dol.gov and/or call the DOL toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

-Adapted from “Breast-Feeding Supplies Win Tax Breaks From I.R.S., by David Kocieniewski, The New York Times, published: February 10, 2011, http://www.nytimes.com/2011/02/11/business/11breast.html, retrieved 2/18/11 and “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA” (Revised December 2010), U.S. Department of Labor, Wage and Hour Division (WHD), http://www.dol.gov/whd/regs/compliance/whdfs73.htm, retrieved 2/14/11. Story source: “ You want me to pump where?”, e-mail, MomsRising.org, February 13, 2011.

 

 

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