Unbeknownst to many employers, the recently passed Patient Protection and Affordable Care Act (the PPACA) includes provisions granting broad protections to working mothers who breastfeed and wish to express milk while at work.  Most significantly, the PPACA requires employers to provide reasonable unpaid break time to nursing mothers to express their breast milk in a private space for up to one year after the child’s birth.  This section of the law, which amends the Fair Labor Standards Act, mandates that the private lactation room may not be a restroom or a bathroom stall.  These requirements apply to all employers; however, those that employ fifty or fewer employees may be exempt if these requirements “impose an undue hardship by causing the employer significant difficulty or expense.”

Employers Should Take Note of State Breastfeeding Laws

The PPACA merely sets the minimum expectations for how an employer treats breastfeeding employees; it does not disturb the laws of those states that provide greater protections to breastfeeding employees.  Whether it is the PPACA or a state statute, employers must abide by the law that is more favorable to the breastfeeding employee.  As such, employers should familiarize themselves with the PPACA, as well the breastfeeding laws in the states in which they operate.  With twenty-eight states, including Illinois and New York, having passed laws protecting the rights of employees who breastfeed, the chances are good that employers with widespread operations will find it necessary to provide unpaid breaks, private rooms or similar accommodations to breastfeeding employees.

Illinois employers must comply with the Nursing Mothers in the Workplace Act, a law that imposes many of the same requirements as the PPACA.  Because the Illinois Act requires that breastfeeding breaks must typically coincide with already-provided break time, Illinois employers should now modify their policies and practices to ensure they are in compliance with the PPACA and grant breastfeeding breaks at the mother’s discretion.

New York State goes beyond the PPACA and requires that employers provide breastfeeding accommodations for up to three years after the child’s birth, rather than the one-year requirement of the PPACA.  In addition, New York has adopted a Breastfeeding Mothers Bill of Rights, which must be posted in all maternal health care facilities.  Conversely, there are PPACA requirements that will impose increased responsibilities on New York employers as the New York law does not prohibit employers from using restrooms as lactation rooms (as the PPACA does), nor does it require employers with fewer than fifty employees to establish that compliance with the law would amount to an “undue hardship” (as the PPACA does).

Other states that provide greater rights than those afforded by the PPACA include:  Indiana, which requires that lactation break time be compensable; Hawaii and Montana, both of which make it an illegal discriminatory practice to refuse to hire, withhold pay or terminate an employee because of the employee’s breastfeeding practices; and the District of Columbia, which includes breastfeeding in its definition of discrimination on the basis of sex and requires that private lactation rooms be kept “clean” and “sanitary.”

How Do Employers Comply With These Laws?

Because the breastfeeding protections went into effect in March 2010, employers should act now to ensure they are in compliance with the law.  Policies should be drafted and disseminated to demonstrate compliance with both federal and state lactation room laws.

Employers should also consider the following related issues:

 1. Is the lactation room actually private? As noted above, restrooms or bathroom stalls are insufficient.  The designated lactation room, according to the Department of Labor, does not have to be a permanent space, and it will meet the federal requirements if it is accessible as needed by the employee.  Further, employers should provide that safeguards such as a key card or manual lock are in place to ensure compliance with privacy requirements.

 2. Are there any superseding state laws with which I must comply? Workplace lactation laws vary greatly among the states, and employers should carefully examine the relevant state statutes to ensure compliance with both federal and state law. 

 3. Who has been informed of the lactation room policy?  Be certain that all employees are aware of the company’s lactation room policy.  Some form of training, especially for supervisory employees, is suggested.  In addition, be sure that the lines of communication are open for those employees who will use the lactation room.

 4. Has a breastfeeding-related conflict arisen? Treat all allegations of discrimination and/or retaliation based on an employee’s or potential employee’s breastfeeding practices seriously and address them promptly.