Are You Ready to Meet Your Obligations Toward Employees Who Breastfeed?

Written by Robert G. Brody and Rebecca Goldberg on March 20, 2012

Breastfeeding is widely regarded as ideal for healthy development of infants.  Due to workplace barriers, many mothers who breastfeed their infants abandon breastfeeding when they return to work.  A growing movement supports workplace policies to facilitate breastfeeding and while employer obligations already exist, they exist without much fanfare.  That is likely to change; are you ready?

Thanks to a provision buried in the Patient Protection and Affordable Care Act (commonly known as the “Healthcare Bill”), employers must provide reasonable breaks for mothers to express milk for up to one year after the child’s birth.   These breaks do not need to be paid unless you compensate employees for breaks of a similar duration.  Under this law, employees who are exempt from the overtime requirements of the Fair Labor Standards Act are not entitled to these breaks, but state law may vary.  (In fact, 24 states have laws mandating opportunities for expressing milk.)

In addition to allowing breaks for expressing milk, employers must provide a place where the mother can express milk.  It must be shielded from view, free from intrusion, and it cannot be a bathroom.  The employer does not need to create a separate room for this purpose.  An office with a locked door would be acceptable.  While the law does not expressly require these features, a suitable location would have an electrical outlet, a door that locks, a chair, and access to a refrigerator where the milk can be stored.  If an employer would suffer an undue hardship in providing the breaks or the nursing location and the employer has fewer than 50 employees, it is exempt from these requirements. 

It is an unsettled question whether an employer is guilty of sex discrimination under the Pregnancy Discrimination Act by discriminating against employees for expressing milk.  A federal judge in Houston recently ruled that “lactation discrimination” is not prohibited by that law because lactation is not “pregnancy, childbirth or a related medical condition.”  The Equal Employment Opportunity Commission and many commentators believe otherwise, arguing that lactation is a medical condition related to pregnancy and childbirth.  This decision was a reactionary ruling by a judge who seems to be very much in the minority on this matter.  Employers who discriminate against an employee for breastfeeding are taking a big risk.

Breastfeeding advocates suggest supporting employees who choose to breastfeed is a good business decision.  Breastfed babies are generally healthier, reducing parents’ absenteeism.  Supporting breastfeeding also increases morale and makes it more likely the employee will return to work after childbirth.  A great deal of media attention has recently been devoted to breastfeeding, particularly companies that have asked breastfeeding patrons to leave or cover up.  Hindering an employee in her decision to breastfeed can lead to such unwanted media attention.  We know the federal government is supporting breastfeeding, but will it become commonplace?  Only time will tell.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More