Workplace Breastfeeding Laws

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Most Common Employment Law Issues:

Can an Employee Breastfeed in the Workplace?

Yes. the Patient Protection and Affordable Care Act (Obamacare) requires employers to give reasonable break time for an employee to “express” breast milk for her nursing child. The employee can only do this for up to one year after her child’s birth. Employers are required to provide a place free from intrusion and which is out of view.

Which Employers are Covered by This Provision?

Certain employers are exempted from the requirement to give time and space for an employee to express breast milk. Employers with less than 50 employees are exempt unless the employer is covered by the Fair Labor Standards Act. Employers who are not covered by the Fair Labor Standards Act are exempt.

Part time employees count as employees. If the employer controls not only what is done, but also how it is to be done, then the worker is deemed to be an employee.
Employers can also be exempt if they can show that meeting the requirements of the law would be an undue hardship on their business.

Where Can the Breaks Be Located?

The breaks must occur in a place free from co-worker or public intrusion and must be out of view. The place for breastfeeding breaks cannot take place in bathrooms. The location need not be dedicated to expressing breast milk, but it must be available on demand to nursing mothers who request it.

If the employer does not employ any nursing mothers, the employer does not have to set aside space for future nursing mothers.

What Is a "Reasonable" Time?

A question of what is “reasonable” is typically a question for a jury. However, the frequency of the breaks and the duration of the breaks will depend on the mother’s needs.

Do Employers Have To Compensate the Employee For these Breaks?

Employers are not required to pay employees for these breaks. The only exemption is if the employer would pay employees for any breaks they take.

Are there Any State Laws which are Applicable?

Yes. States are allowed to have stronger protections than the protection given by the federal government. For example, Colorado requires that the mother have up to two years of breaks after the child is born instead of the one year mandated by the federal government.  States which have weaker protections than the protections granted by the federal government are unconstitutional.

The following states exempt breastfeeding from public indecency laws, allowing mothers to nurse wherever mother and infant have a right to be:

Alaska, Arizona, Arkansas, District of Columbia, Florida, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wisconsin and Wyoming.

Do I Need a Lawyer If My Employer Refuses To Permit Me To Breastfeed at Work?

Yes. The Patient Protection and Affordability Care Act is a recent law, so employers might not know exactly what the law requires of them. In addition, the boundaries of the new law are not yet fully determined. An employment attorney can help you understand what employers owe employees who choose to nurse their infants.

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Last Modified: 04-11-2013 10:35 AM PDT

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