Breastfeeding in the workplace

Although Time made breastfeeding a hotly debated issue with its recent cover photo of a mom nursing her almost 4-year-old son, breastfeeding in the workplace has long presented a legal stumbling block for employers and employees alike. The dearth of laws directly applicable to the situation has fueled confusion; however, the increased focus on breastfeeding in general has spurred a move towards defining the legal rights and obligations related to breastfeeding in the workplace. 

This is evidenced at the federal level by the 2010 Patient Protection and Affordable Care Act (PPACA), which contains a provision that requires employers covered by the Fair Labor Standards Act (FLSA) to provide both “reasonable breaks to mothers to express breast milk” and an appropriate area for the process. More recently, the proposed Breastfeeding Promotion Act of 2011 (BPA) seeks to protect breastfeeding women from being discriminated against in the workplace and to afford employees exempt from the FLSA, who are not protected under the PPACA, the right to a break and appropriate area to pump in the workplace.

Under the PPACA, breastfeeding employees must be provided “reasonable” breaks to pump. The reasonableness of the breaks is a question that will vary depending on the employer and employment context. As to the location for these breaks, Fact Sheet No. 73, issued by the Department of Labor, confirms that a bathroom is not a permissible break location. Rather, a functional space must be provided for the employee's use; it need not be dedicated solely for that purpose, but it must be available to the employee when she needs it. According to the fact sheet, “A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.” 

As long as the employee has been completely relieved of her employment duties, employers are not required to compensate an employee for these breaks, regardless of the break's duration. However, if the employee wishes to utilize a compensated break that was already available to her and other employees for the purpose of pumping, the employer must compensate her the same way it compensates other employees.

One glaring omission under the PPACA, however, is that only employees who are not exempt from the FLSA's overtime pay requirements (typically, hourly employees) are legally entitled to breaks to pump. An employer should consider whether other factors, such as employee morale and retention, might dictate that it extend the same opportunities to pump in the workplace to exempt employees.

It's important to note that there is a hardship exemption from this provision for employers with fewer than 50 employees, if the employer can demonstrate that compliance would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business.” Employers should be cautious in determining that they are unable to comply with the PPACA's requirements, however; they need to undertake a careful analysis as to whether the reasons they believe they cannot comply with the requirements will meet the undue hardship standard. 

It is also important to note that employees must notify employers of their intent to take a break for the purpose of expressing milk. The Ohio Supreme Court has previously upheld an employer's right to terminate an employee for taking an unauthorized break to pump because she failed to notify said employer of her intentions. Be careful, however, because the Supreme Court implied in that case that, if the issue was placed before it, it could find that Ohio law prohibits discrimination against lactating employees. 

Before deciding to terminate a lactating employee for taking unscheduled breaks, employers should consider whether they permit other employees to take unscheduled breaks and, if so, for what reasons. A neutral and consistent disciplinary policy should be implemented and enforced. In addition, employers generally may require their breastfeeding employees to follow other rules applicable to all employees.