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One of the lesser known employer responsibilities under the ACA was to require employers to accommodate lactating employees with both break time for expressing milk and a private place to do so. This requirement was codified in the Fair Labor Standards Act (”FLSA”), the law that requires the payment of minimum wage and overtime, at 29 U.S.C. § 207(r). Further, there are some states that have enacted similar protections or have extended rights to lactating employees that exceed these federal protections.
Under the FLSA, employers with over 50 employees are required to provide for reasonable break time for a mother to express milk for her child each time she needs to until the child turns one year old. Pumping break time may be uncompensated if the employee is relieved of all duty during the break. However, to avoid claims of disparate treatment, employers should treat pumping breaks in the same manner that they treat other breaks – meaning, if an employer allows employees to take paid breaks for things like smoking or taking a walk, then lactating employees should be similarly accommodated.
The FLSA’s language regarding the pumping space specifically states that the space cannot be a bathroom. Other than that, the law requires only that the space be shielded from view, free from intrusion by coworkers and the public, and that it be available each time the employee needs to use it. This means an office, conference room, or storage space can all become pumping spaces so long as the employee can access it as needed. There is no obligation to permanently reserve the space or to provide milk storage, but the employee should be allowed to use community refrigerators where other food is stored.
It’s important to recognize that these workplace pumping protections do not apply to everyone. Employers with less than 50 employees may be exempt if complying would impose an undue hardship that causes significant difficulty or expense in relation to the size, resources, nature, or structure of the business. Additionally, because pumping protection is encompassed in the FLSA, it does not apply to exempt employees because they are, by definition, exempt from the FLSA.
An employee who is denied lactation accommodation can proceed through the Department of Labor for assistance or can move directly to a lawsuit. Damages available include reinstatement (if the employee has been separated) and back wages (which can be liquidated, meaning doubled). Outside of the FLSA, employees have sought recourse via Title VII, which prohibits discrimination on the basis of sex (among other things) and the Pregnancy Discrimination Act, which ensures that Title VII encompasses pregnancy, child birth and related medical conditions. While efforts to bring lactation related claims under these laws were mostly unsuccessful years ago, courts have recently been reconsidering their prior positions and allowing these claims to proceed. Employers should be cautious when considering whether to deny pumping protection to exempt employees because these options would also be available to exempt employees.
As a matter of best practices, employers should review their handbooks, policies, and procedures to ensure appropriate language is used in referenced to accommodating lactation and that employees have a clear understanding of where to direct concerns. Employers should notify their pregnant employees that they are prepared to support their decision to breastfeed before the employee goes on leave. Finally, employers should think about any necessary schedule adjustments and available pumping space options before a nursing mother returns from leave so the process can be functional on her first day back.
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