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Accommodating Breast-Feeding

In addition to comply with federal laws on providing private areas for female employees to express breast milk, employers should also take note of some state-specific requirements.

Tuesday, September 6, 2011
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Question: We are a private company with offices in California, Hawaii and Nevada. Many of our employees are new mothers and we have been informed that some are currently breast-feeding. We have been asked to provide private pumping stations for our breast-feeding mothers on work premises. Are we legally required to do so?

Answer: State laws regarding breast-feeding, virtually unheard of 20 years ago, have proliferated in recent years, with some 24 states, the District of Columbia and Puerto Rico now having laws related to the expression of breast milk in the workplace. Breastfeeding Laws, National Conference of State Legislatures.

Because an employer's obligations to accommodate its breast-feeding employees vary widely from state to state, it is important for employers to become familiar with the laws of each state in which they operate and ensure that their policies comply with local laws.

California

In California, private employers of all sizes must make reasonable efforts to provide employees with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The employee's normal work area may be used if it allows the employee to express milk in private. Cal. Lab. Code § 1031.

While the question of what amounts to an appropriate "room or other location" has not been determined by the courts, the privacy concerns driving the statute lead at least one commenter to surmise that merely allowing the employee to use an open corner of a bathroom, or a cubicle from which the employee can be heard expressing milk, will not pass muster. Elizabeth L. Graves, "Law Office Management, Complying with California's New Lactation Accommodation Law," Los Angeles Lawyer, Feb. 2003 at 20.

An enclosed and soundproof room with a door that can be locked from the inside would be ideal.

Further, if multiple employees need to express milk, as it sounds is the case with your company, the employer should provide more than one private room, or accommodate alternative break schedules so that employees need not share the room simultaneously and have to express milk in the presence of other women. Id.

That said, it is worth noting that although employers are required to provide a private space for nursing mothers, there is no indication that California law requires employers to provide equipment, such as breast pumps, to facilitate the expression of breast milk.

However, if employers are concerned about lost efficiency due to breast-feeding, they might consider providing electric pumps, which work faster than manual or battery-powered pumps that employees may bring in themselves.

Employers may also consider providing a space that is near a sink or refrigerator, where the employee can wash the pumps and store the milk without losing time to find a distant bathroom or kitchen area. Id.

In addition to providing a private space for employees to express milk, California employers must provide a reasonable amount of break time for employees to do so unless it would seriously disrupt the employer's operations. Cal. Lab. Code §§ 1030, 1032.

Employees may be required to use the paid break time the employer has already provided, though they are not limited to only paid break time. Should an employee require reasonable additional time beyond her paid break time, the employer must provide the time, but it may be unpaid. Cal. Lab. Code § 1030.

Employers who do not abide by California's breast-feeding statute may receive a citation from the Labor Commissioner, subjecting the employer to a civil penalty of $100 for each violation. Cal. Lab. Code § 1033(a).

Hawaii and Nevada

While Hawaii, like California, prohibits employers from forbidding an employee from expressing breast milk during a legal break period, Hawaiian law does not provide that employers must provide a private space to breast-feed. Haw. Rev. Stat. § 378-10.2.

Nevada has not taken up the issue of expressing milk in the workplace at all.

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Federal Law

However, even in states without applicable state laws, employers must bear in mind that they must comply with federal law as well.

In 2010, Congress passed the Patient Protection and Affordable Care Act (H.R. 3590, 111th Cong.) as part of President Obama's healthcare overhaul, which amended the Fair Labor Standards Act to mandate that an employer provide reasonable break time for any employee to express milk for her nursing child for one year after a child's birth each time she needs to do so. 29 U.S.C. § 207(r).

In addition, the employer must provide a place to express milk, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public. Id.

According to the Department of Labor, the space may be temporarily created or converted into a space for expressing milk so long as it is functional as a space for expressing breast milk and available when needed by nursing mothers. Wage & Hour Div. Fact Sheet #73, U.S. Dep't of Labor (Dec. 2010).

For small businesses, the federal act contains an exemption: businesses with fewer than 50 employees are not subject to the federal law if compliance would result in undue hardship, as determined by the difficulty or expense of compliance in comparison to the size, resources, nature and structure of the employer's business. 29 U.S.C. § 207(r)(3).

Additionally, federal law does not require employers to purchase breast-feeding equipment, such as pumps, to provide to employees.

In sum, absent an undue hardship (or, in California, a "serious disruption"), you must provide a private space for your employees who breast-feed, but not equipment. A proactive approach in tackling this issue will keep you compliant and litigation-free.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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