Does Your Employee Handbook Have a Lactation Accommodation Policy?

By Benjamin A. Nucci and Audrey E. Chastain

Many employers are familiar with break and meal period requirements applicable to their organization under state and federal law. Often overlooked, however, is an employer’s responsibilities toward nursing mothers. This article takes a look at some of the requirements employers should be aware of when reviewing their lactation accommodation policies.

Federal Requirements:

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act of 2010 (“PPACA”). See 124 Stat. 119 et seq. Among many provisions, Section 4207 of the PPACA amended the Fair Labor Standards Act of 1938 (“FLSA”), to require employers to provide:

• A reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk; and
• A place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

29 U.S.C. § 207(r)(1). Employers with less than 50 employees are not subject to these requirements, if compliance would constitute an undue hardship on the employer. Id. at § 207(r)(3).

Although the FLSA does not specify what a “reasonable” break time is in terms of length and frequency, the United States Department of Labor has stated that nursing mothers will typically require between two and three breaks to express breast milk in an eight-hour shift and that the break time should be between 15 and 20 minutes (although the length of break time depends on several factors, including the age of the baby, the number of breastfeedings in the baby’s normal daily schedule, whether the employee must get her pumping supplies from another location away from her workspace, and how long it takes the employee to walk to and from the lactation space). See 75 Fed. Reg. 80073-01, 80074-75 (Dec. 21, 2010).

Generally, the FLSA does not require employers to pay employees for their lactation breaks. See 29 U.S.C. § 207(r)(2). However, employers will be required to provide paid lactation breaks if: (1) the employer provides paid breaks to all employees, and the employee uses that time as a lactation break; (2) the employee is not completely relieved from duty during her lactation break; or (3) the employee is exempt and a failure to pay for time spent on her lactation break would improperly reduce the employee’s salary. See 29 C.F.R. § 785.18; 75 Fed. Reg. at 80074-75; Wage & Hour Division (“WHD”) Fact Sheet #22: Hours Worked Under the FLSA (revised July 2008); WHD Frequently Asked Questions – Break Time for Nursing Mothers.

In addition to guidelines on lactation breaks, there are several factors to consider with the space where lactation breaks are to occur. For example, the lactation space must have a locking door, and the windows must be covered. Id. 75 Fed. Reg. If it is not possible for an employer to make a room available to a lactating employee, employers may use curtains or partitions to create a space, so long as the space is free from intrusion and shielded from the view of others in the workplace. Id.; 29 U.S.C. § 207(r)(1)(B).

Retaliation against an employee is prohibited. See 29 U.S.C. §§ 215(a)(3), 216(b); see also Salz v. Casey’s Mktg. Co., No. 11-CV-3055 (N.D. Iowa, July 19, 2012) (“[O]nce an employer discriminates or discharges an employee in relation to an employee’s complaint about the employer’s express breast feeding policy, [the employer has] violated not only Section 207(r) but also Section 215(a)(3).”).

The United States Department of Labor’s Wage and Hour Division is responsible for enforcing employer compliance with respect to lactation accommodation policies.

State and Local Requirements:

Importantly, nothing in the PPACA or the FLSA preempts state laws from providing greater protections to employees. See 29 U.S.C. § 207(r)(4). For example, New York requires employers to provide reasonable break time for employees – both non-exempt and exempt – to express breast milk for up to three years after the child’s birth, which is an additional two years than what is required under the federal law. N.Y. Lab. Law § 206-c. Additionally, if an employee’s workstation is not near the lactation space, the New York State Department of Labor’s guidelines require a minimum break time of 30 minutes for each lactation break. See New York State Department of Labor, Division of Labor Standards, Guidelines Regarding the Rights of Nursing Mothers to Express Breast Milk in the Work Place.

Moreover, some state lactation requirements had been in place long before the federal amendment. For example, Colorado’s Workplace Accommodations for Nursing Mothers Act, § 8-13.5-101, C.R.S., became effective on August 5, 2008, and requires employers with one or more employees to provide reasonable break time for employees to express breast milk in a location in close proximity to the employee’s work area for up to two years after the child’s birth. The employer must permit the employee to take an unpaid break or permit the employee to use a paid break or meal time. A handy comparison between the federal and Colorado requirements can be found on the Colorado Department of Labor and Employment’s website.

Notably, like with paid sick leave, some local jurisdictions have followed in the states’ footsteps and imposed greater requirements. New York City recently passed two new laws which expand employer obligations with respect to nursing mothers. Effective March 19, 2019, New York City employers with four or more employees will be required to comply with the following:

• Lactation Room Requirements. Under Int. No. 879-A, covered employers must make a lactation room available for nursing mothers upon request within “reasonable proximity” to the employee’s work area. A “lactation room” is defined as a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion. The room must also include a chair, an electric outlet, a surface on which to place a breast pump and other personal items, and nearby access to running water. In addition, employers are now also required to provide a refrigerator suitable for breast milk storage in “reasonable proximity” to the employee’s work area. See here.
• Lactation Policy Requirements. Under Int. No. 905-A, employers implement a written lactation room policy and provide a copy to all new hires. The policy must notify employees that they have the right to a lactation room, and describe a process by which employees may request use of a lactation room. See here.

The New York City laws follow San Francisco, which enacted its own ordinance effective 2018. See here.

Conclusion:

Employers are required to offer a lactation accommodation under the FLSA. However, the FLSA did not preempt state law on the issue and, therefore, compliance becomes more complex for those employers operating across multiple states that impose their own requirements. Moreover, like in New York City and San Francisco, even local jurisdictions at the city or county level are mandating greater protections than what is currently available at the state or federal level. Thus, employers with a national presence may want to regularly review the specific state and local requirements in each jurisdiction in which they do business to ensure that they remain in compliance with any relevant laws.