Many female workers in the United States do not know their rights when it comes to lactating in the workplace. I hear of women pumping their breast milk in their vehicles, or in the bathroom (yuck!) for lack of having a suitable space in the workplace. I firmly believe that female workers should be afforded the right to work outside the home AND breastfeed their baby. When it comes to infant nutrition, breast is the best. I'm not going to go into the benefits of breastfeeding (you can look that up on your own), nor am I condemning those that choose to formula feed; to each their own. I will, however, be addressing a mother's rights when lactating as it applies to U.S. law.
A lot of women think they only get protected lactation benefits if they work for an employer with 50 or more employees. That's not true. They're thinking of FMLA (the family & medical leave act). FMLA addresses medical leave, not breaks for pumping breast milk. Employers with less than 50 employees are allowed an exemption in some cases, and that is outlined below.
The laws that apply to protected lactation benefits include:
Nearly all states have their own laws on pregnancy leave, and most of these mirror the PDA. The Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) (29 U.S.C. Sec 207) by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time the employee has a need to express milk.
Employers must provide 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.
The Department of Labor's (DOL) "Fact Sheet #73: Break Time For Nursing Mothers Under the FLSA" provides general information on the break time requirement for nursing mothers in the ACA, including general requirements, time and location of breaks, and coverage and compensation during break time. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid to other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. DOL states that breaks for expressing breast milk would not be properly be considered FMLA or count against the FMLA leave entitlement. DOL encourages employers to permit nursing employees to make up unpaid break time.
According to the DOL, the frequency of breaks needed to express breast milk varies, depending on factors such as the age of the baby, the number of feedings in the baby's normal daily schedule, whether the baby is eating solid food, and other factors. Therefore, DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift, and that longer shifts require additional breaks to express milk.
The analysis of reasonable time must also include the time it takes to get to the lactation site, the time it takes to gather, set up, and clean a breast pump and other supplies, and to secure and store the milk. DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express breast milk.
According to EEOC's 2014 guidance, lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address nonincapacitating medical conditions, it must also allow female employees to change their schedules or use sick leave for lactation-related needs.
Smaller employers with fewer than 50 are exempt from the break time rule ONLY if the employer can demonstrate that compliance that the statute would cause the employer "significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business." Where practicable, employers should make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable for an employer to provide a room, DOL says the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or space should be covered to ensure the space is shielded from view.
With any space provided for expressing milk, the employer must ensure the employee's privacy through means such as signs that designate when the space is in use or a lock on the door. The employer is not obligated, says DOL, to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view and free from intrusion from coworkers and the public.
In order to be a functional space, DOL says the room must contain, at a minimum, a place for the nursing mother to sit, and a flat surface, other than the floor, on which to place the pump. Ideally, the space should have access to electricity so that a nursing mother can plug an electric pump, rather than use a pump with battery power. DOL recognizes that there are a range of additional features that some employers have included when providing spaces for their employees to use to express breast milk, such as sinks within or nearby the room for washing hands and cleaning pump attachments, and refrigerators within or nearby the room for storing expressed milk. While such additional features are not requires, says DOL, their provision may decrease the amount of break time needed by nursing employees to express milk. Employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk; however, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work.
Ensure you check your state specific laws as well as your company policies in addition to knowing the federal laws I've just outlined.
Additional Source: HR.BLR
A lot of women think they only get protected lactation benefits if they work for an employer with 50 or more employees. That's not true. They're thinking of FMLA (the family & medical leave act). FMLA addresses medical leave, not breaks for pumping breast milk. Employers with less than 50 employees are allowed an exemption in some cases, and that is outlined below.
The laws that apply to protected lactation benefits include:
- ADA (Americans with disabilities act)
- PDA (pregnancy discrimination act)
- ACA (affordable care act)
- EEO (equal employment opportunity)
- Civil Rights Act of 1964
- FLSA (fair labor standards act)
Nearly all states have their own laws on pregnancy leave, and most of these mirror the PDA. The Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) (29 U.S.C. Sec 207) by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time the employee has a need to express milk.
Employers must provide 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.
The Department of Labor's (DOL) "Fact Sheet #73: Break Time For Nursing Mothers Under the FLSA" provides general information on the break time requirement for nursing mothers in the ACA, including general requirements, time and location of breaks, and coverage and compensation during break time. If the employer already provides compensated breaks to employees, the covered employees must be paid for that portion of time expressing milk equal to the time paid to other employees during breaks. The employer does not have to compensate for time that exceeds the paid break time. DOL states that breaks for expressing breast milk would not be properly be considered FMLA or count against the FMLA leave entitlement. DOL encourages employers to permit nursing employees to make up unpaid break time.
According to the DOL, the frequency of breaks needed to express breast milk varies, depending on factors such as the age of the baby, the number of feedings in the baby's normal daily schedule, whether the baby is eating solid food, and other factors. Therefore, DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift, and that longer shifts require additional breaks to express milk.
The analysis of reasonable time must also include the time it takes to get to the lactation site, the time it takes to gather, set up, and clean a breast pump and other supplies, and to secure and store the milk. DOL encourages nursing employees to give employers notice of the intent to take breaks and states that the employer may ask an expectant mother if she intends to take breaks to express breast milk.
According to EEOC's 2014 guidance, lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address nonincapacitating medical conditions, it must also allow female employees to change their schedules or use sick leave for lactation-related needs.
Smaller employers with fewer than 50 are exempt from the break time rule ONLY if the employer can demonstrate that compliance that the statute would cause the employer "significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business." Where practicable, employers should make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable for an employer to provide a room, DOL says the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or space should be covered to ensure the space is shielded from view.
With any space provided for expressing milk, the employer must ensure the employee's privacy through means such as signs that designate when the space is in use or a lock on the door. The employer is not obligated, says DOL, to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view and free from intrusion from coworkers and the public.
In order to be a functional space, DOL says the room must contain, at a minimum, a place for the nursing mother to sit, and a flat surface, other than the floor, on which to place the pump. Ideally, the space should have access to electricity so that a nursing mother can plug an electric pump, rather than use a pump with battery power. DOL recognizes that there are a range of additional features that some employers have included when providing spaces for their employees to use to express breast milk, such as sinks within or nearby the room for washing hands and cleaning pump attachments, and refrigerators within or nearby the room for storing expressed milk. While such additional features are not requires, says DOL, their provision may decrease the amount of break time needed by nursing employees to express milk. Employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk; however, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work.
Ensure you check your state specific laws as well as your company policies in addition to knowing the federal laws I've just outlined.
Additional Source: HR.BLR
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