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Lactation Breaks: What Employers Need To Know

A woman is suing her former employer, a music streaming service, for sex and pregnancy discrimination. She alleges the organization terminated her because she requested a private area to use to pump breast milk.

The employee made her request shortly after she returned from maternity leave. The lawsuit alleges the employer responded by telling her to use the bathroom and prohibiting her from using an office. Matthew K. Johnson "Tidal Waves? Music Streaming Service Faces Lactation Break Challenge," (Dec. 15, 2016).

Commentary and Checklist

The Centers for Disease Control and Prevention (CDC) states that breastfeeding rates in the U.S. are on the rise, meaning that employers will likely see more employees requesting accommodation for pumping breast milk.

The Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy and pregnancy-related conditions in any aspect of employment, including hiring, termination, job assignments, promotions, layoff, training, and fringe benefits.

The Fair Labor Standards Act (FLSA) requires employers to provide reasonable break times as often as needed for employees to express breast milk for one year after the birth of their child. Employers must also provide a location, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Also, federal law prohibits employers from retaliating against an employee who requests accommodation for pumping breast milk or complains about violations of the PDA or FLSA.

Some state laws provide nursing mothers with even more employment protection, in which case the state law should be followed.

With a growing number of mothers wanting to breastfeed, it is within reason to believe that family employers will be asked to accommodate needs sooner or later. In order to keep a productive employee and be in compliance, family employers should allow a private place, other than a bathroom, for mothers to use to pump breast milk and allow a place for them to store the milk until the employees can take it home.

Here are some additional guidelines for meeting the Department of Labor’s requirements concerning nursing employees:

  • The employee must be completely relieved of work duties during pumping breaks.
  • Employers with fewer than 50 employees are not subject to FLSA break time requirements if they can show that compliance would pose an “undue hardship.” To prove undue hardship, compliance must be too difficult and expensive in comparison to the organization’s size, financial resources, nature, and structure. 
  • Break time for expressing milk does not have to be compensated, unless the employer provides compensated breaks for other employees, in which case the breaks must be compensated in the same manner.

For more information, family employers should always seek the advice of counsel.

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