As state legislatures convene for their 2018 sessions, employers are beginning to wonder what types of trends they can expect to see over the coming months. Among these will undoubtedly be laws protecting employees who express breast milk at work.
New Jersey recently made headlines with its new breast-feeding law, and legislation is now pending in California that would impose substantial new breast-feeding accommodation requirements on employers. Bills have been introduced in other states as well, making this an issue to watch.
The interest in legislation related to breast-feeding and lactation rights can be traced in part to pregnancy discrimination guidance from the Equal Employment Opportunity Commission, according to Howard Wexler, a partner with Seyfarth Shaw. That guidance, issued in 2014 and revised in 2015, cited an increase in pregnancy discrimination cases and recommended that employers adopt policies protecting employees who express breast milk in the workplace.
In addition, “the American medical community has been strongly advocating the benefits of breast-feeding for both mothers and infants,” Wexler told Bloomberg Law. This has prompted an increase in the practice, with more women looking to continue breast-feeding upon returning to work after childbirth, which is likely another factor contributing to this legislative trend.
Certain protections already exist at the federal level. The Fair Labor Standards Act requires covered employers to provide nonexempt employees with reasonable break time to express breast milk in the workplace, pursuant to amendments signed into law as part of the Patient Protection and Affordable Care Act.
The EEOC has also indicated, in the guidance mentioned above, that breast-feeding may be protected as a pregnancy-related condition under Title VII of the Civil Rights Act of 1964, and some federal appeals courts have agreed.
But many states—and some cities—are looking to provide more stringent protections than those provided under federal law.
The most recent example of a state stepping in to provide greater employment protections is New Jersey’s new breast-feeding law. Effective Jan. 8, New Jersey added breast-feeding as a protected class under its Law Against Discrimination and now requires employers to reasonably accommodate employees on the basis of breast-feeding. “Reasonable accommodations” include reasonable break time and a suitable, private location for employees to express breast milk.
The provisions of the New Jersey law differ from protections set forth under the FLSA in “three key respects,” Wexler said:
Other state laws go further, such as adding notice or policy requirements. Massachusetts’ new pregnancy accommodation law, which takes effect on April 1, requires employers to provide employees with notice of the law’s protections in a “handbook or otherwise.” The Massachusetts law requires reasonable accommodations for conditions related to pregnancy, which explicitly include “lactation or the need to express breast milk for a nursing child.”
Some local requirements are even more exacting. As of Jan. 1, San Francisco employers are subject to an ordinance that has been deemed the “strongest lactation policy in the nation.” Under the San Francisco law, all employers must adopt and enforce policies specifying the procedures under which employees may request breast-feeding accommodations. San Francisco employers also must maintain written records of all requests for breast-feeding accommodations for three years after they are made.
Breast-feeding accommodation legislation has been introduced in several states, with perhaps the most noteworthy example being California. The bill that’s currently pending in the Golden State would essentially extend the protections of the San Francisco ordinance to the rest of the state.
If the legislation passes, California employers would need to provide employees with lactation rooms that meet specific criteria, including a surface to place a breast pump and other personal belongings, a place to sit, and access to electricity, a sink with running water, and a refrigerator. Employers with fewer than five employees would be allowed to file for hardship exemptions with the state’s Labor Commissioner.
Wexler said that he expects this trend of state and local breast-feeding protections to continue. “Similar to other areas of the labor and employment law world where a patchwork of state/city/local laws have developed”—like minimum wage or paid sick leave—“we are seeing a similar trend” with respect to accommodations for women who express breast milk at work. He noted that such legislation is pending in Texas, Wisconsin, Pennsylvania, and Maryland, among other places.
When it comes to adopting a workplace policy on breast-feeding accommodations, Wexler reminds employers that, “as with any accommodation, whether it is based on an employee’s religion, disability, or pregnancy-related condition, there is no ‘one size fits all’ answer.”
Employers trying to determine whether a breast-feeding accommodation would be an undue burden will want to consider “the cost of the accommodation, the financial resources of the employer, the overall size of the employer’s business with respect to number of employees, the nature of the employer’s facilities, and the impact of the accommodation on the employer’s operations,” he said.
One question that employers often ask is whether employees need to be compensated for break time used to express breast milk, Wexler said. While the FLSA doesn’t require the break time to be compensated, employers must be consistent regarding their own practices. If employers already provide compensated break time, employees who use such breaks to express breast milk must be compensated in the same manner as other employees.
Similarly, employers will want to be “cautious when implementing any rules that could be viewed as limiting” employees’ rights to express breast milk in the workplace, especially if those rules aren’t “applied equally to other employees who are allowed to attend to personal needs during work or use private places for personal purposes,” he said.
For more information on relevant state laws, see Bloomberg Law’s Breast-Feeding Rights Chart (subscription required).
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