A signature campaign promise for Donald Trump was to repeal the Affordable Care Act (ACA), commonly called Obama Care, and replace it with … well, something to be determined. With President Trump now in office, the ACA is officially on life support with Republicans ready to pull the plug.
However, the ACA is a highly complex and voluminous statute. It also touched upon many aspects of the employment relationship outside of health insurance.
Nursing Mothers and the ACA
One such area has to do with working mothers who are nursing. The ACA sought to promote the Surgeon General’s Call to Breastfeeding, which detailed numerous health benefits for both babies and their mothers. These benefits included:
- Breastfed babies have a decreased incidence of SIDS;
- They are less likely to develop asthma and obesity;
- Mothers who breastfeed are less likely to develop breast and ovarian cancers; and
- Breastfeeding also saves an average family between $1200-$1500 in the first year, in addition to significant savings in healthcare.
One impediment to breastfeeding found by the Surgeon General was a lack of accommodation for breastfeeding or accommodation for expressing milk at the workplace. As Forbes notes (See An Obamacare Repeal Could Strip Women of Workplace Breastfeeding Protections, by Claire Zillman this is a “uniquely” American problem:
The problem that the breastfeeding provision sought to solve is uniquely American. Since the United States is the only industrialized nation in the world without paid maternity leave, many new mothers are forced to return to work shortly after giving birth. In fact, 59% of first-time mothers return to paid work in the first three months postpartum. At the same time, the American Academy of Pediatrics urges them to exclusively breastfeed their newborns for six months, since breastfeeding is shown to benefit the health of both babies and new moms. That leaves many women with an agonizing choice: Stop breastfeeding, take unpaid time off work, or figure out a way to nurse or pump milk on-the-job.
With this in mind, the ACA amended the Fair Labor Standards Act to require guarantees to working mothers to have a private area for to pump. This private area could not be a bathroom and had to have access to a sink any refrigerator. Small businesses are exempted if the requirements would “impose an undue hardship by causing the employer significant difficulty or expense.”
Repealing the ACA and What it Means for Nursing Mothers
If the ACA’s breastfeeding provision does not survive, then it falls to states to protect the rights of breastfeeding women in the workplace. Presently 28 states plus Washington, D.C., and Puerto Rico had laws similar to the Obamacare provision according to the National Conference of State Legislatures.
However, Trump and his fellow Republicans’ motivation to repeal the ACA have routinely focused on other aspects of the ACA (e.g., insurance mandates, subsidies, and Medicaid expansion). But that doesn’t mean under President Trump the breastfeeding provision would likely be enforced less aggressively.
For example, President Trump signed an executive order (Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal) directing federal agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement” in the ACA that places a cost or burden on businesses and individuals. This could give the agency that enforces the provision, the DOL Wage and Hour Division, discretion to grant more hardship waivers.
In contrast, businesses may find that with or without the ACA provision it makes sense to continue to maintain a workplace friendly to nursing mothers regarding public relations, recruiting, and reduction in overall lost employee productivity due to the health benefits cited by the Surgeon General’s report referenced above.