Whether you are a new mom or just pregnant with your first baby, the chances are you already thought or heard about the benefits of breastfeeding. Most moms have an intention to breastfeed their child, but for many the postpartum reality might look different. "Incredible", "isolating", "magical", "bittersweet", "empowering", "tumultuous", and "difficult but worth it" were among the terms moms in our community used to describe their breastfeeding journeys.
According to the survey conducted in 2019-2020 by Centers for Disease Control and Prevention, nearly 84% of infants start out breastfeeding, but only about 25% of infants are breastfed exclusively through six months. Breastfeeding offers numerous wonderful benefits to both the child and the mother, but expressing milk upon a return to work comes with its own set of challenges. Workplaces are not equipped to accommodate breastfeeding mothers, so, how should working mothers handle breastfeeding their child? What rights do you have as a breast-feeding mother in the workplace?
Since the implementation of the Affordable Act (ACA) in 2010, the federal law now requires an employer to provide reasonable break time for an employee to express breast milk for up to one year after the child's birth. The employer must also provide a place, other than a bathroom, for the employee to express breast milk, but these breaks are often unpaid. Most notably, an employer with fewer than 50 employees is not subject to these requirements.
In July 2019 Congress passed the Fairness for Breastfeeding Mothers Act of 2019. The new law requires certain public buildings to provide "a shielded, hygienic space other than a bathroom, that contains a chair, working surface and an electrical outlet for use by members of the public to express milk."
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Below is a quick look at state breastfeeding laws, as noted by National Conference of State Legislatures:
- All fifty states, the District of Columbia, Puerto Rico and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location.
- Thirty-one states, the District of Columbia, Puerto Rico and the Virgin Islands exempt breastfeeding from public indecency laws. (Alaska, Arizona, Arkansas, Florida, Idaho, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.)
- Thirty states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace. (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia and Washington.)
- Twenty-two states and Puerto Rico exempt breastfeeding mothers from jury duty or allow jury service to be postponed. (California, Colorado, Connecticut, Delaware, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, New York, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah and Virginia.)
- Four states and Puerto Rico have implemented or encouraged the development of a breastfeeding awareness education campaign. (California, Illinois, Minnesota and Missouri)
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A Closer Look at Breastfeeding Laws in California
The state of California adopted a series of employment laws that protect mothers wishing to breastfeed their child and/or continue to express breastmilk at work. It's one of the most progressive pieces of legislation in the nation.
Lactation Breaks at Work (to Pump)
According to Work Lawyers, "a lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump)." As mentioned above, both state and federal laws require California employers to provide lactation breaks in a private area to express breast milk. The area must be in close proximity to the employee’s work area, and may not be a toilet stall.
If the employee takes their lactation breaks at times other than their normal rest or meal breaks, the employer is not required to pay the employee during the lactation break.
If the lactation break occurs at the same time that a paid break would otherwise occur for the employee, the break must be paid.
The Rights to Breastfeeding Accommodations
As mentioned above, employers are required to make reasonable efforts to provide employees with a private area, other than a toilet stall, to express breast milk. But California law also requires many employers to take additional steps to accommodate breastfeeding.
In California, lactation is a condition related to pregnancy or childbirth. As such, "employers are required to accommodate the employee’s lactation-related needs, just as they would for pregnant employees." These accommodations often include transferring the employee to a less strenuous or hazardous position.
Breastfeeding Discrimination and Harassment at Work
In California, it is unlawful for an employer with five or more employees to discriminate against an employee on the basis of their sex. But the law isn't specific with regards to smaller companies employing fewer than 5 employees.
Similarly, employers are prohibited from harassing women for reasons related to breastfeeding. The protections against workplace harassment are broader than those against discrimination and they apply regardless of the employer’s size. According to the CA law, women may not be treated unfairly or improperly because they desire to breastfeed, take lactation breaks, or pump (whether at home or work).
Consequences of Legal Violations
If an employer fails to provide their employees with a lactation break, they can be required to pay a civil penalty of $100.00 for each violation. In some cases, part of that penalty can be recovered by the employee.
Similarly, if the employer discriminates against a breastfeeding employee, they can be held liable for substantial damages. Those damages might include:
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Compensatory Damages. Money to compensate the mother for any harm she suffered, such as lost wages, unpaid wages, or medical expenses.
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Punitive Damages. Money to punish the employer for their wrongful actions. These are especially likely if the employer retaliated against the employee for enforcing their breastfeeding-related rights.
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Legal Expenses. Money to pay the employee’s litigation-related costs, including attorney fees, court fees, and expert witness fees.
California offers one of the broadest protections to pregnant and breastfeeding mothers in the US, but every state is different. Working mothers deserve proper accommodations and legal protections regardless of where they live. What protections does you state and/or your employer offer to breastfeeding mothers in workplaces?
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Image source: CDC
Other sources:
Work Lawyers, Lactation Break Law In California.
Work Lawyers, Breastfeeding Employment Laws In California.
You can learn more about breastfeeding and pumping rights at work for working parents in all 50 states here.
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