Lactation in the Workplace: What Employers Need to Know

By: Lewis Brisbois' Labor & Employment Team

Americans, including many new mothers, are returning to the workplace following pandemic shutdowns. Over 80% of U.S. mothers breastfeed their babies after giving birth, according to a 2016 study from the Centers for Disease Control. Over half of those mothers are still breastfeeding once their babies reach six months old. A complicated tapestry of federal and state laws affects employers of lactating mothers.

The federal Break Time for Nursing Mothers Law became effective in 2010. This law requires employers to provide covered employees with “reasonable” break times to express breast milk at work for up to one year after giving birth. Employers do not need to compensate their employers for time spent while away from work on these breaks. Notably, the law covers only some employees – those who are not exempt from the Fair Labor Standards Act’s overtime pay requirements.

This law also requires that employers provide a suitable space for their lactating employees to express breast milk. Employers are not required to create a space specifically for this purpose but need to make one available for employees as needed. The law states that the space must be “a place other than a bathroom, […] shielded from view and free from intrusion from coworkers and the public.” This means that any windows should be covered and the door equipped with a lock or marked with a sign. Employers need not provide a refrigerator, but they must permit employees to bring an insulated container to safely store their milk, as well as a reasonably secure place to keep the container.

Employers with less than 50 total employees may be eligible for an undue hardship exemption from this law’s requirements if they can show that compliance would result in “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.” But, this undue hardship is a high bar.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), applies to private, state, and local government employers with 15 or more employees. The PDA prohibits employers from taking adverse employment actions against an individual because of pregnancy, childbirth, or a related medical condition (including lactation). Employers must treat all employees affected by pregnancy or a related medical condition the same as non-pregnant employees, including providing accommodations and allowing leave requests.

In addition to these federal requirements, at least 30 states have enacted laws to encourage or regulate workplace accommodations for lactating employees. All 50 states have also passed laws that create an affirmative right to publicly breastfeed. As workplaces begin to reopen, employers should ensure their policies and procedures comply with federal and state laws on lactation.

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