Legal

Nursing Mothers Feeling Bottled Up at Work

By Sarah E. Bell

Apr. 3, 2017

Mothers are among the fastest-growing segments of the U.S. labor force. Retention of women, particularly women with children, has become a challenge, due in part to the inability of employers to accommodate their unique needs and circumstances. One of those needs and circumstances is breast-feeding.

nursing mothers and newborns
Mothers should receive certain accommodations at work when nursing their newborns.

According to the American Academy of Pediatrics, although breast milk is the optimal source of nutrition for infants up to 12 months, many working moms who want to breast-feed stop when they return to work because they just aren’t afforded the time or privacy to pump, or the ability to nurse their babies while on the job.

Employment is now the norm for U.S. women of childbearing age. According to the Department of Labor, in 2013, 62 percent of all mothers with children younger than 12 months were employed, and approximately 70 percent of mothers with children under age 18 were employed.  According to the Centers for Disease Control and Prevention, close to 80 percent of mothers start breast-feeding immediately after birth, but only about 22 percent of those moms are breast-feeding exclusively six months later.

Employed women currently are less likely to initiate breast-feeding, and they tend to breast-feed for a shorter length of time than women who are not employed. This is because many employed mothers who are lactating must express milk at work, which is not an option for all working moms.

Where and when do women pump who want to breast-feed but have jobs that require them to be in public or on their feet all day? Federal law and a number of states now require employers to provide time and space for new mothers to express breast milk. Not only is it the law, but retaining female employees is likely in the business’ best interest as well.

The Affordable Care Act sets forth several requirements for accommodation of breast-feeding employees. Section 4207 amends the Fair Labor Standards Act of 1938 to require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express milk.

The employer is not required to compensate an employee receiving reasonable break time for any work time spent for such purpose unless the employee is routinely provided compensated breaks; then an employee who uses that break time to express milk must be compensated in the same manner as other employees. The employer must also provide a place, other than a bathroom, for the employee to express breast milk. That place must be “shielded from view and free from intrusion from coworkers and the public.”

In addition, the federal Right to Breastfeed Act (included as part of a Treasury-Postal appropriations bill) permits a woman to breast-feed her child “at any location in a federal building or on federal property, if the woman and her child are otherwise authorized to be present at the location.”

What Employers Are Subject to the Law?

All employers covered by the FLSA must comply with the break time for nursing mothers provision, unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship on their business. Furthermore, federal requirements do not preempt state laws that provide greater protections to employees.

Under federal law, most employers must provide breast-feeding employees who are non-exempt under the FLSA with “reasonable break time” and a private place to express milk during the workday until the child turns a year old.

The private place must be “shielded from view and free from intrusion from co-workers and the public.” It also must not be a bathroom or restroom. A number of state employment laws, such as New York’s, provide even greater protections to breast-feeding mothers.

There are many ways to support breast-feeding in the workplace. Some accommodations and their enactment may vary and/or depend on the size or type of business. While not required by law, some employer accommodations of nursing moms may include:

Providing a designated clean, private, lockable, non-restroom space for pumping; ideally, including a refrigerator/freezer and workstation so employees can continue to work if possible/necessary.

Allowing flexible scheduling to support milk expression during work hours.

Providing on-site, nearby or child care support/assistance so infants can be close to their nursing moms.

Providing or providing access to high-quality breast pumps and pump parts.

Paying for or reimbursing the expense of shipping breast milk home when nursing moms must travel for business trips (some companies use a company called Milk Stork).

Giving mothers flexible options for returning to work for the first six months to a year after a child’s birth.

How can a business accommodate its female employees while at the same time maintaining its operations? The best policy concerning new mothers and breast-feeding is flexibility.

What works for one mom — or one business — may not work for another. Thus, evaluating a particular employee and business’ needs on a case by case basis is often a good strategy. Providing a private, clean room, a refrigerator and encouraging colleagues to be understanding and respectful of pumping time are baseline needs for a new mom. Many moms cite a “supportive” business and “understanding colleagues” as important factors in their breast-feeding success. Ultimately, your employees’ success is your business’ success too.

Sarah E. Bell is an attorney with Pryor Cashman in New York and co-chair of the firm’s ADA Defense and Consulting group. Comment below or email editors@workforce.com.

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