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Although the new law generally applies to employers with 50 or more employees, the provision explicitly states that employers with fewer than 50 employees are not required to provide the breaks "if such 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."  Use of the phrase "significant difficulty or expense" appears to place the burden on the employer to show that they cannot comply with the break requirements.  Litigation over similar language in other statutes has shown that meeting this threshold can be particularly burdensome.  Therefore, employees with fewer than 50 employees are not automatically exempt from the amendment's requirements.  In addition, the amendment does not address how employers should count the 50 employees for purposes of relying on this "undue hardship" justification.

The lactation breaks must be provided for up to one year, and in an appropriate location other than a bathroom.  In states that already provide such break periods, employers must comply with both the federal and state law, or whichever offers more generous benefits.  These new requirements went into effect on March 23, 2010, and may eventually subject employers to civil or other penalties for noncompliance.

For more information on this new FLSA requirement and how employers can fulfill the new obligations, see Littler's ASAP: FLSA Amended to Require Breaks and Space to Express Breast Milk for Nursing Mothers by Julie Dunne and Mendy Mattingly.