Woman trying to work with baby on lap

In honor of National Breastfeeding Month, it is time to celebrate and honor working moms who juggle their job and family duties with equal vigor. For moms returning to the workplace while still nursing their new babies, that juggling act can present unique challenges. So, let’s explore how employers can give nursing mothers a break – literally!

Provide FLSA Break Time for Nursing Mothers

When the Patient Protection and Affordable Care Act was signed into law in 2010, the Fair Labor Standards Act (FLSA) was amended to require employers to provide non-exempt employees with “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 milk.” The frequency and duration of such breaks will vary from mom to mom and employers must provide reasonable breaks as often as the nursing mother needs. Such breaks may be unpaid as long as the employee is completely relieved of all duties during the break. Of course, if the employee expresses milk during already compensated break time, then that break must be paid.

What about exempt employees who need to express milk during working hours? As you likely know, most exempt employee under the FLSA must be paid on a salary basis which means that the employee’s predetermined salary may not be reduced because of variations in the number of days or hours worked in a week, except in very limited circumstances. Consequently, employers should permit exempt employees to take breaks necessary for expressing breast milk as often as needed without docking any pay from the exempt employees’ salaries.

Provide An Appropriate Location for Nursing Mothers to Express Breast Milk

Under the FLSA nursing-mother provisions, employers are required to provide a place that is shielded from view and free from intrusion from coworkers and the public, other than a bathroom, to be used for expressing breast milk. Employers may create a temporary space for this purpose when needed by a nursing mother, as long as it meets the privacy requirements and is made available when needed.

Please note that smaller employers with fewer than 50 employers may avoid the FLSA lactation break provisions if able to demonstrate that compliance with the provisions would impose an undue hardship on the business by imposing significant difficulty or expense.

Remember: The Pregnancy Discrimination Act (PDA) Protects Lactation and Breastfeeding

The PDA, which is part of Title VII of the Civil Rights Act of 1964 and applies to employers with 15 or more employees, prohibits employment discrimination on the basis of pregnancy, childbirth, and related medical conditions. The Equal Employment Opportunity Commission (EEOC) enforces the PDA and advises that lactation is a pregnancy-related medical condition. If an employer treats a lactating employee less favorably than other employees, the employer may be liable for unlawful discrimination under the PDA. For example, if an employer allows employees to change their schedules or use sick leave for non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.

Check Relevant State Lactation Laws

Numerous states have enacted lactation laws that similarly require employers to provide break time for nursing mothers to express breast milk. If a state law provides greater protections to the employee than is provided under the federal law, such as requiring paid breaks, or providing lactation breaks beyond one year after the child’s birth, etc., a covered employer must offer those additional protections.

Generally, there are three types of state workplace laws that may protect lactating employees, including:

  1. Break time and space: state laws similar to the FLSA provisions that require employers to (a) allow nursing mothers to take breaks to express breast milk and/or (b) mandate that employers provide an appropriate location for such breaks
  2. Reasonable accommodations: state laws that require covered employers to provide reasonable accommodations related to pregnancy and childbirth, which can address lactation needs; some of these state laws may have an undue hardship defense
  3. Anti-discrimination: state laws that prohibit discrimination and/or retaliation against an employee due to breastfeeding, taking lactation breaks, etc.

Conclusion

As nursing moms juggle the demands of a new baby and returning to work, employers can help by abiding by these break and location requirements for lactating employees. Employers should check the state and local laws that are applicable to their workforce and prepare to comply with the requirements when a nursing mom needs a lactation break.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.