What are my obligations for accommodating a lactating employee in the workplace?
Earlier this year, an Arizona jury found in favor of a breastfeeding paramedic, awarding the nursing mother $3.8 million for her lawsuit alleging that she was not provided a lactation space as required by federal law (Clark v. City of Tucson, No. 14-02543 (D. Ariz. April 12, 2019)). While the “Break Time for Nursing Mothers” law took effect in 2010 and many states and municipalities have since passed laws protecting the rights of lactating women in the workplace, it is clear that many employers still do not understand their obligations in this regard. Employees have brought breastfeeding discrimination claims for any number of actions taken by their employers, including:
- the denial of requested, yet legally required pumping breaks;
- the termination of employees even for requesting pumping breaks;
- the failure to provide an appropriate, private location for pumping; and
- harassing comments about pumping at work, such as comparing breastfeeding workers to animals or commenting on the lactating employee’s breasts.
Under 2010 amendments to the federal Fair Labor Standards Act (FLSA), employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The breaks need not be paid, as long as the employee is completely relieved from work during the break. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.
Employers also are required to 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.” While employers are not required to create a permanently dedicated space for breastfeeding employees, a space must be available each time an employee needs it.
These requirements under the FLSA apply only to employees who are not exempt from the overtime requirements of the FLSA. Moreover, employers with fewer than 50 total employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Factors to be considered in determining undue hardship include the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.
While some employers in some instances may not be required by the FLSA to provide breaks to nursing mothers, keep in mind that many states and municipalities have passed similar laws in this area. For example, New Jersey and Delaware have laws mandating breastfeeding breaks. New Jersey’s law applies to employers with any number of employees, and the Delaware law covers employers with four or more employees.
Finally, employers should be aware of retaliation claims. The law prohibits retaliation against employees for requesting breaks to pump and for raising any concerns or complaints – either internally to the company or externally to the government – regarding pumping arrangements.
Employers faced with requests for pumping breaks should consult with experienced human resources professionals and/or labor and employment counsel when in doubt about the appropriate course of action. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.