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Two new rulings benefit nursing mothers

February 16, 2011

In a recent announcement, the Internal Revenue Service (IRS) clarified that breast pumps and supplies that assist lactation are medical care because, like obstetric care, they are for the purpose of affecting a structure or function of the body of the lactating woman. Therefore, expenses paid for breast pumps and supplies that assist in lactation are deductible medical expenses and eligible for reimbursement through Flexible Spending Accounts (FSAs), Health Reimbursement Arrangements (HRAs), or Health Savings Accounts (HSAs).

Such expenses will be automatically substantiated when purchased with the TASC Card. Participants who would like to be reimbursed for a lactation-related expense may submit a Request for Reimbursement according to their Plan.

In addition, the Department of Labor (DOL) has provided a new fact sheet* that addresses the break time requirement for nursing mothers as put forth in the Patient Protection & Affordable Care Act (PPACA). Specifically, only employees who are not exempt from the Fair Labor Standard Act’s (FLSA) overtime pay requirements are entitled to breaks to express milk, but employers may be required by state law to provide breaks to exempt employees for these purposes.

The DOL said employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The fact sheet states that what is considered a “reasonable break time” will likely vary. 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.”

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. 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.

*Fact Sheet #73: Break Time for Nursing Mothers under the FLSA

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