Workplace Lactation

The number of jurisdictions that have enacted so-called 'lactation' laws continues to grow. Determining how to accommodate employees who breastfeed their children is an issue that many employers will need to address. Creating and implementing polices to allow women to express breast milk at work will benefit female employees who choose to nurse their children and will help ensure compliance with breastfeeding laws. This article includes discussion of the various approaches that jurisdictions have taken when providing legal protections for breastfeeding employees and establishing legal requirements for employers. It also includes practice pointers to help employers comply with breastfeeding laws.

Background

At least 19 states, Puerto Rico, and the District of Columbia have enacted legislation or passed resolutions explicitly addressing the rights of employees who breastfeed or express milk at work. Additionally, legislation regarding this issue is under consideration in a number of states and at the federal level. Currently, some states provide incentives for, or express encouragement of, employers providing breaks for employees to express milk. Other states have explicitly stated that employers may provide break time for this purpose or have explicitly required that employers do so. Other employee protections and employer obligations regarding breastfeeding in the workplace have also been included in laws. The following are examples of the varying approaches that have been adopted.

The Law in New York

In 2007, New York enacted legislation providing certain rights and protections to breastfeeding mothers in the workplace. Under the New York law, entitled 'Right of nursing mothers to express breast milk,' an employer must either provide 'reasonable unpaid break time' for an employee to express milk for her child or allow the employee to use meal or paid break time to do so for three years after the employee gives birth. Additionally, employers must 'make reasonable efforts to provide' a space for an employee to express breast milk privately. The law further provides that the location or room must be 'in close proximity to the work area.' Finally, the New York law prohibits employers from discriminating against employees who express breast milk at work.

Other Jurisdictions

Workplace Conditions

Lactation laws frequently address workplace conditions associated with breastfeeding practices.

Many of the laws requiring or encouraging employers to provide employees with a place to express milk privately specify that the location cannot be a toilet stall or, in some cases, a bathroom. Laws in California, Connecticut, Georgia, Illinois, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, and the District of Columbia all contain such a requirement. The lactation laws of Indiana, which became effective July 1, 2008, also contain such a requirement. California law further explains that the location may be 'where the employee normally works if it otherwise meets the requirements of [the law].' The District of Columbia specifies that the space may be 'a childcare facility in close proximity to the employee's work location.' Oregon's law states that the area, which cannot be a toilet stall or public restroom, 'may include ' [t]he employee's work area if the work area meets the requirements [of the law] or ' [a] child care facility in close proximity to the employee's work location where the employee can express milk in private.' A 1999 executive order issued in Oregon directed that 'state agencies ' make reasonable efforts to provide a room or other location in close proximity to work areas, other than a restroom,' for employees to breastfeed or express milk privately. New Mexico's law, which contains provisions 'to foster the ability of a nursing mother who is an employee to use a breast pump in the workplace,' specifically requires that employers provide a private and clean space for the employee to do so. The location must be near the work space and cannot be a bathroom. A resolution agreed to by the Virginia Senate and House of Delegates, encouraging employers to provide breaks and a place for employees to express breast milk, states that the location should not be a toilet stall.

Several other states provide that, if possible, the break should run concurrently with already provided break time. The law in the District of Columbia also provides for concurrent breaks. Oregon law, which states that an 'employer may provide the employee up to 60 minutes in rest periods per eight-hour shift to express milk,' also states that, if possible, the rest periods used to express breast milk should be taken at the same time as other rest periods provided by the employer. The Virginia resolution also allows for concurrent breaks.

Most of the laws concerning breastfeeding or expressing milk in the workplace include phrases such as 'reasonable efforts' when explaining an employer's duty
to provide breaks and locations for expressing breast milk. Some laws attempt further to define the efforts employers must make. Laws in Connecticut, Oklahoma and Rhode Island define reasonable efforts as 'any effort that would not impose an undue hardship on the operation of the employer's business' and define undue hardship as 'any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.' California law explains that break time is not required under the breastfeeding law if it 'would seriously disrupt the operations of the employer.' Laws in Georgia, Illinois, Minnesota, Montana, Oklahoma, Rhode Island, Tennessee, and the District of Columbia, as well as the law regarding state employers in Indiana, contain similar statements. Montana law requires public employers to provide break time for an employee to express milk if the employer already allows breaks. The law explains that '[i]f breaks are not currently allowed, the public employer shall consider each case and make accommodations as possible.'

The law in New Mexico, which requires 'flexible break times' for use of a breast pump, notes that an employer is not liable for refrigerating or storing breast milk. The Indiana law regarding state employers requires that the employer 'make reasonable efforts to provide a refrigerator or other cold storage space for keeping milk that has been expressed,' but notes that the employer does not face liability if it makes a reasonable effort at compliance. The Indiana law requiring employers with 25 or more employees to provide a place for employees to express breast milk also requires that, '[t]o the extent reasonably possible, an employer shall: (1) provide a refrigerator or other cold storage space for [the breast milk]; or (2) allow the employee to provide the employee's own portable cold storage device' and notes that, absent 'willful misconduct, gross negligence, or bad faith, an employer is not liable for any harm' regarding the storage or expressing of breast milk.

Non-discrimination

Lactation laws commonly prohibit discrimination against breastfeeding employees. Similarly, draft federal legislation that provides tax incentives for employers who provide appropriate locations for women to breastfeed at work, prohibits employers from discriminating against breastfeeding employees.

Mississippi's law states that an employer cannot 'prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer.' Hawaii law, which requires that employers not prohibit employees 'from expressing breast milk during' break or meal periods, also prohibits penalizing an employee or refusing to hire someone because she expresses breast milk or breastfeeds at work. Virginia law prohibits certain employers from firing employees based on lactation, which it defines as 'a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast.' District of Columbia law requires that '[w]omen affected by pregnancy, childbirth, related medical conditions, or breastfeeding shall be treated the same for all employment-related purposes.' Additionally, Connecticut and Montana provide general prohibitions of discrimination against mothers who choose to express breast milk or breastfeed at work.

Penalties

Some jurisdictions provide specific penalties for noncompliance with workplace lactation laws. For example, Puerto Rico law 'grant[s] working mothers ' the opportunity to nurse their children for a half (1/2) hour during each full-time working day ' to go to where the child to be breastfed is being cared for, should the company or employer have a child care center in its facilities, or to express breast milk at the place provided for such purposes in the workplace.' The law provides that an employer may be fined for an amount 'equal to three times the salary paid to [the] employee for each day she was denied the period to nurse or express breast milk.'

California law subjects employers to fines of $100 for each violation and a citation issued by the Labor Commissioner.

Other Related Laws, Resolutions

Texas has created a 'Mother-Friendly' designation for businesses that meet certain standards. It allows a business to include the designation in promotional materials if it has a policy supporting breastfeeding in the workplace that addresses: '(1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk; (2) the provision of accessible locations allowing privacy; (3) access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast-pumping equipment; and (4) access to hygienic storage alternatives in the workplace for the mother's breast milk.'

Washington allows an employer to use an 'infant-friendly' designation in promotional materials if it has 'an approved workplace breastfeeding policy' that addresses similar factors.

Some states have adopted or enacted resolutions generally encouraging employers to make provisions for employees who choose to breastfeed or express milk at work. In such a resolution, the California Legislature 'encourage[d] the State of California and all California employers to strongly support and encourage the practice of breastfeeding by striving to accommodate the needs of employees, and by ensuring that employees are provided with adequate facilities for breastfeeding, or the expressing of milk for their children.' In Wyoming, the Legislature stated in a resolution that it 'encourages breastfeeding and commends employers, both in the public and the private sector, who make accommodations for breastfeeding mothers whenever feasible.'

Practice Pointers

Employers should review their policies, or establish new policies, for breastfeeding employees to ensure compliance with the laws of the jurisdictions in which they operate. Initially, employers should determine whether a breastfeeding law has been enacted in the location in which they operate. If there is such a law, employers should determine whether the law is applicable to them, which in some cases may depend on the type of employer and its size. Finally, employers should review with care the requirements of any applicable laws.

An important step toward compliance with most breastfeeding laws is identifying an adequate location for nursing employees to express breast milk. Typically, the location must allow for privacy and be close to the employee's work space. The location also should be clean. To provide privacy, an employer can allow an employee access to an empty office with a lockable door and either window coverings or no windows. Additionally, an 'occupied' or 'do not disturb' sign can help ensure privacy. An employee's own office may also be used if privacy is possible. The location should not be a bathroom or toilet stall.

Furthermore, because most of the laws do not specify the length of a required break period, employers must decide what constitutes a reasonable amount of break time. Employers may wish to engage in a dialogue with each breastfeeding employee to determine the reasonable length of time for a break.

Employers may also wish to offer training in the workplace to inform employees about their rights and to advise all employees that discrimination based on a person's decision to express breast milk at work is prohibited. Such a program may also advance communication between employers and employees, which can help employers decide what constitutes a reasonable amount of break time. Training efforts may also help employees feel comfortable utilizing the accommodations that are available for breastfeeding and may reduce the risk of discrimination claims.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Allison M. Herron is an associate in the firm's New York office.

The number of jurisdictions that have enacted so-called 'lactation' laws continues to grow. Determining how to accommodate employees who breastfeed their children is an issue that many employers will need to address. Creating and implementing polices to allow women to express breast milk at work will benefit female employees who choose to nurse their children and will help ensure compliance with breastfeeding laws. This article includes discussion of the various approaches that jurisdictions have taken when providing legal protections for breastfeeding employees and establishing legal requirements for employers. It also includes practice pointers to help employers comply with breastfeeding laws.

Background

At least 19 states, Puerto Rico, and the District of Columbia have enacted legislation or passed resolutions explicitly addressing the rights of employees who breastfeed or express milk at work. Additionally, legislation regarding this issue is under consideration in a number of states and at the federal level. Currently, some states provide incentives for, or express encouragement of, employers providing breaks for employees to express milk. Other states have explicitly stated that employers may provide break time for this purpose or have explicitly required that employers do so. Other employee protections and employer obligations regarding breastfeeding in the workplace have also been included in laws. The following are examples of the varying approaches that have been adopted.

The Law in New York

In 2007, New York enacted legislation providing certain rights and protections to breastfeeding mothers in the workplace. Under the New York law, entitled 'Right of nursing mothers to express breast milk,' an employer must either provide 'reasonable unpaid break time' for an employee to express milk for her child or allow the employee to use meal or paid break time to do so for three years after the employee gives birth. Additionally, employers must 'make reasonable efforts to provide' a space for an employee to express breast milk privately. The law further provides that the location or room must be 'in close proximity to the work area.' Finally, the New York law prohibits employers from discriminating against employees who express breast milk at work.

Other Jurisdictions

Workplace Conditions

Lactation laws frequently address workplace conditions associated with breastfeeding practices.

Many of the laws requiring or encouraging employers to provide employees with a place to express milk privately specify that the location cannot be a toilet stall or, in some cases, a bathroom. Laws in California, Connecticut, Georgia, Illinois, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, and the District of Columbia all contain such a requirement. The lactation laws of Indiana, which became effective July 1, 2008, also contain such a requirement. California law further explains that the location may be 'where the employee normally works if it otherwise meets the requirements of [the law].' The District of Columbia specifies that the space may be 'a childcare facility in close proximity to the employee's work location.' Oregon's law states that the area, which cannot be a toilet stall or public restroom, 'may include ' [t]he employee's work area if the work area meets the requirements [of the law] or ' [a] child care facility in close proximity to the employee's work location where the employee can express milk in private.' A 1999 executive order issued in Oregon directed that 'state agencies ' make reasonable efforts to provide a room or other location in close proximity to work areas, other than a restroom,' for employees to breastfeed or express milk privately. New Mexico's law, which contains provisions 'to foster the ability of a nursing mother who is an employee to use a breast pump in the workplace,' specifically requires that employers provide a private and clean space for the employee to do so. The location must be near the work space and cannot be a bathroom. A resolution agreed to by the Virginia Senate and House of Delegates, encouraging employers to provide breaks and a place for employees to express breast milk, states that the location should not be a toilet stall.

Several other states provide that, if possible, the break should run concurrently with already provided break time. The law in the District of Columbia also provides for concurrent breaks. Oregon law, which states that an 'employer may provide the employee up to 60 minutes in rest periods per eight-hour shift to express milk,' also states that, if possible, the rest periods used to express breast milk should be taken at the same time as other rest periods provided by the employer. The Virginia resolution also allows for concurrent breaks.

Most of the laws concerning breastfeeding or expressing milk in the workplace include phrases such as 'reasonable efforts' when explaining an employer's duty
to provide breaks and locations for expressing breast milk. Some laws attempt further to define the efforts employers must make. Laws in Connecticut, Oklahoma and Rhode Island define reasonable efforts as 'any effort that would not impose an undue hardship on the operation of the employer's business' and define undue hardship as 'any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.' California law explains that break time is not required under the breastfeeding law if it 'would seriously disrupt the operations of the employer.' Laws in Georgia, Illinois, Minnesota, Montana, Oklahoma, Rhode Island, Tennessee, and the District of Columbia, as well as the law regarding state employers in Indiana, contain similar statements. Montana law requires public employers to provide break time for an employee to express milk if the employer already allows breaks. The law explains that '[i]f breaks are not currently allowed, the public employer shall consider each case and make accommodations as possible.'

The law in New Mexico, which requires 'flexible break times' for use of a breast pump, notes that an employer is not liable for refrigerating or storing breast milk. The Indiana law regarding state employers requires that the employer 'make reasonable efforts to provide a refrigerator or other cold storage space for keeping milk that has been expressed,' but notes that the employer does not face liability if it makes a reasonable effort at compliance. The Indiana law requiring employers with 25 or more employees to provide a place for employees to express breast milk also requires that, '[t]o the extent reasonably possible, an employer shall: (1) provide a refrigerator or other cold storage space for [the breast milk]; or (2) allow the employee to provide the employee's own portable cold storage device' and notes that, absent 'willful misconduct, gross negligence, or bad faith, an employer is not liable for any harm' regarding the storage or expressing of breast milk.

Non-discrimination

Lactation laws commonly prohibit discrimination against breastfeeding employees. Similarly, draft federal legislation that provides tax incentives for employers who provide appropriate locations for women to breastfeed at work, prohibits employers from discriminating against breastfeeding employees.

Mississippi's law states that an employer cannot 'prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer.' Hawaii law, which requires that employers not prohibit employees 'from expressing breast milk during' break or meal periods, also prohibits penalizing an employee or refusing to hire someone because she expresses breast milk or breastfeeds at work. Virginia law prohibits certain employers from firing employees based on lactation, which it defines as 'a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast.' District of Columbia law requires that '[w]omen affected by pregnancy, childbirth, related medical conditions, or breastfeeding shall be treated the same for all employment-related purposes.' Additionally, Connecticut and Montana provide general prohibitions of discrimination against mothers who choose to express breast milk or breastfeed at work.

Penalties

Some jurisdictions provide specific penalties for noncompliance with workplace lactation laws. For example, Puerto Rico law 'grant[s] working mothers ' the opportunity to nurse their children for a half (1/2) hour during each full-time working day ' to go to where the child to be breastfed is being cared for, should the company or employer have a child care center in its facilities, or to express breast milk at the place provided for such purposes in the workplace.' The law provides that an employer may be fined for an amount 'equal to three times the salary paid to [the] employee for each day she was denied the period to nurse or express breast milk.'

California law subjects employers to fines of $100 for each violation and a citation issued by the Labor Commissioner.

Other Related Laws, Resolutions

Texas has created a 'Mother-Friendly' designation for businesses that meet certain standards. It allows a business to include the designation in promotional materials if it has a policy supporting breastfeeding in the workplace that addresses: '(1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk; (2) the provision of accessible locations allowing privacy; (3) access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast-pumping equipment; and (4) access to hygienic storage alternatives in the workplace for the mother's breast milk.'

Washington allows an employer to use an 'infant-friendly' designation in promotional materials if it has 'an approved workplace breastfeeding policy' that addresses similar factors.

Some states have adopted or enacted resolutions generally encouraging employers to make provisions for employees who choose to breastfeed or express milk at work. In such a resolution, the California Legislature 'encourage[d] the State of California and all California employers to strongly support and encourage the practice of breastfeeding by striving to accommodate the needs of employees, and by ensuring that employees are provided with adequate facilities for breastfeeding, or the expressing of milk for their children.' In Wyoming, the Legislature stated in a resolution that it 'encourages breastfeeding and commends employers, both in the public and the private sector, who make accommodations for breastfeeding mothers whenever feasible.'

Practice Pointers

Employers should review their policies, or establish new policies, for breastfeeding employees to ensure compliance with the laws of the jurisdictions in which they operate. Initially, employers should determine whether a breastfeeding law has been enacted in the location in which they operate. If there is such a law, employers should determine whether the law is applicable to them, which in some cases may depend on the type of employer and its size. Finally, employers should review with care the requirements of any applicable laws.

An important step toward compliance with most breastfeeding laws is identifying an adequate location for nursing employees to express breast milk. Typically, the location must allow for privacy and be close to the employee's work space. The location also should be clean. To provide privacy, an employer can allow an employee access to an empty office with a lockable door and either window coverings or no windows. Additionally, an 'occupied' or 'do not disturb' sign can help ensure privacy. An employee's own office may also be used if privacy is possible. The location should not be a bathroom or toilet stall.

Furthermore, because most of the laws do not specify the length of a required break period, employers must decide what constitutes a reasonable amount of break time. Employers may wish to engage in a dialogue with each breastfeeding employee to determine the reasonable length of time for a break.

Employers may also wish to offer training in the workplace to inform employees about their rights and to advise all employees that discrimination based on a person's decision to express breast milk at work is prohibited. Such a program may also advance communication between employers and employees, which can help employers decide what constitutes a reasonable amount of break time. Training efforts may also help employees feel comfortable utilizing the accommodations that are available for breastfeeding and may reduce the risk of discrimination claims.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Allison M. Herron is an associate in the firm's New York office.