How to Accommodate Breast-Feeding Employees in the Workplace

Lactation-accommodation laws have become more specific over the last few years, and as employers work to create inclusive workplaces, many businesses want to be more welcoming to nursing mothers returning to their jobs.

"We continue to see a greater focus on women's issues in the workplace—from the #MeToo movement to pay equity to pregnancy and lactation accommodations," said Christine Bestor Townsend, an attorney with Ogletree Deakins in Milwaukee.

For nearly a decade, federal law has mandated that employers provide nursing mothers with unpaid break time to express breast milk for a year after the birth of a child. Federal law also requires employers to provide a private space—other than a bathroom—that a breast-feeding employee may use.

"But while a locked supply closet might meet the requirements of federal law, employers may want to consider doing more as a mother-friendly best practice," Townsend said.

"Recently, we have also seen states and localities pass laws that go beyond the federal requirements to provide greater protections for nursing mothers in the workplace," noted Melissa Osipoff, an attorney with Fisher Phillips in New York City.

Here's what employers need to know about lactation-accommodation laws and best practices for providing an inclusive workplace for nursing mothers.

Federal Law

In 2010, the Affordable Care Act amended the Fair Labor Standards Act (FLSA) to provide minimal protection for nursing mothers to take breaks to express breast milk. The requirements don't apply to employers that are not covered by the FLSA or to those that are covered but have fewer than 50 employees if compliance with the provisions would impose an undue hardship.

Under the FLSA, employers are not required to pay nonexempt employees for their lactation break time, except to the extent that they pay other workers for similar breaks, noted Farrah Rifelj, an attorney with law firm Michael Best in Milwaukee and Madison, Wis. Some states, however, do require employers to pay nonexempt employees for lactation break time.

State Laws

"The federal law sets the floor, not the ceiling, and states and localities are free to adopt greater protections for nursing mothers," Townsend explained.

More and more states are weighing in, and more than half the states now have laws specifically addressing lactation accommodation in the workplace. Some of these state laws are similar to the measures outlined by the FLSA, but some more recent ones provide even greater rights.

For example, in 2018, Illinois passed the Nursing Mothers in the Workplace Act, which prohibits reducing employee pay for needed breast-feeding breaks but doesn't require pay if the employee uses scheduled break time, such as a lunch break, to breast-feed or express breast milk.

"Like any laws that develop through a patchwork of state or local laws, each particular law will have its own peculiarities," Osipoff said.

For example, a law may:

• Require lactation accommodations for employees who are not covered by the federal law.
• Provide for paid break time.
• Extend the time during which an employee is permitted to take lactation breaks beyond one year following the birth of a child.
• Provide specific requirements about the space made available for employees to express breast milk.
• Prohibit discrimination against employees who choose to express breast milk in the workplace.

While many state and local laws add commonsense rules to the FLSA protections—such as requiring the lactation room to be sanitary—newer laws require more from employers, including written policies and specific lactation room inclusions, Townsend noted.

[SHRM members-only HR Q&A: What are an employers' responsibilities for accommodating nursing mothers?]

"Employers with multistate operations may want to consider a broad policy that covers most of these laws, with perhaps specific addendums for jurisdictions such as Illinois, San Francisco and New York City," she said.

Best Practices

Employers should confirm the specific requirements for their location and ensure their policies comply, Rifelj said. "It is also helpful to develop a returning-from-leave onboarding program—which can be as simple as a meeting with HR—for mothers returning from leave, to orient them to any lactation space and answer any related questions," she said, adding that supervisors and managers should be trained on the company's obligations in this area.

Employers should note that employees and job candidates are looking at these policies to determine whether a workplace is mother-friendly, Townsend said. So whether an employer is covered by only federal law or state and local laws, providing a private location for nursing mothers to use that is near their workstation, completely shielded from view, clean, locked from the inside and accessible when they need it should be an employer best practice, she added.

At a minimum, the lactation room should contain a chair, a flat surface (such as a side table) and an electrical outlet. Easy access to a refrigerator is also beneficial—and required in certain jurisdictions.

Federal law and most local laws merely state that "reasonable" break time is required. "Different women will require different amounts of time to pump, and employers should be wary of assuming all employees will require the same amount of time," Townsend said.

A company may consider providing paid breaks as part of a supportive breast-feeding policy even if the applicable laws don't require it, Osipoff suggested. "Additionally, employers should keep in mind that breast-feeding employees may need additional accommodations if, for example, they work with toxic substances, have to travel for work or have uniform requirements."

Devjani Mishra, an attorney with Littler in New York City, said employers should talk directly with breast-feeding employees to find out what accommodations work best for their specific work and personal needs.

Employers can always focus on the requirements of a given statute, but they shouldn't lose sight of the goal, she said, which is to create a more-inclusive workplace and make working mothers feel comfortable when they return to work.