MANAGING BEST PRACTICES: New fed law challenges EHS pros

June 4, 2010
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The Patient Protection and Affordable Care Act (health care reform) is now law. As you may be aware, the act provides basic direction but does not provide details on how to meet its many requirements, to be enforced by the Labor Department.

Among other provisions, the law requires an employer to:
  • Provide a reasonable break time for an employee to express milk for her nursing child one year after the child’s birth each time such employee has the need to express milk.
  • 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.
Companies employing less than 50 employees are not be subject to these requirements if they cause the employer significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer’s business.

Conflicting opinions

Rush Limbaugh has weighed in on the law and finds it an unnecessary intrusion by government.(1) The United States Breastfeeding Committee, however, “applauds the workplace breastfeeding support provision in health care reform.”(2)

So is this an issue to be addressed by an EHS pro?

As noted in Figure 1 in my December, 2009 ISHN column, Workplace developmental hazards: Be sure to manage the “right side,” employees who breastfeed are within the continuum of workplace developmental health.(3) The issue of breastfeeding does impact employee health and the health of employees’ children.

Plus, the place where breast milk may be expressed has been interpreted by the U.S. Department of Health and Human Services and other authorities to include a location that is “clean and sanitary.” This is why expressing milk in a bathroom is now prohibited by law.

OSHA hazcom

Proximity to storage and use of chemicals should be considered. Within OSHA’s September, 2009 proposed rule to align the hazard communication standard with the globally harmonized system for chemical labeling (GHS) is a new health hazard category “effects on or via lactation.” As defined within the United Nations’ GHS guides, this category includes “substances that may be absorbed by women and have been shown to interfere with lactation, or that may be present (including metabolites) in breast milk in amounts sufficient to cause concern for the health of a breastfed child.”


Whether breast milk may become contaminated during the period when it is being expressed may be a minor issue compared to the concern of whether breast milk may be contaminated from workplace chemicals before it is expressed. Wide interpretations are possible. The LactMed database can be used to identify chemicals of concern.(4) LactMed is part of the National Library of Medicine’s TOXNET® database and includes information about chemicals and drugs to “which breastfeeding mothers may be exposed.”

Seek expert advice

Determining if chemical exposures are safe for workers who breastfeed falls on the shoulders of EHS pros. The health hazard category of “effects on or via lactation” falls into the “reproductive” health hazard category within GHS. The GHS precautionary statement P201 for the reproductive hazards is “obtain special instructions before use.” Additionally, Control Banding strategies suggested by NIOSH place reproductive hazards (by inhalation) into Band No. 4 where the control is “Seek expert advice.”

Almost all the information you need to develop and manage a workplace breastfeeding program, except for issues on chemical exposures, can be found in the report, Investing in Workplace Breastfeeding Programs and Policies: An Employer’s Toolkit; Washington, D.C. Center for Prevention and Health Services, National Business Group on Health; 2009.(5)

The new federal law that allows time for workers to express breast milk may extend to incentives under the law for employers that develop wellness programs. The impact of other requirements in the law, such as Section 10323 that provides Medicare coverage and medical screenings to individuals exposed to environmental health hazards from Superfund sites, could be very problematic, especially if medical screening may be performed to find chemicals in breast milk. All of this and more begs for an EHS pro’s involvement.


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