National Laws Protecting Breastfeeding Employees

Under the Reasonable Break Time for Nursing Mothers provision of the Fair Labor Standards Act,  all employers covered by that national law must provide certain employees with reasonable break time and a space to express breast milk for up to one year after their child’s birth. 29 U.S.C. § 207(r). The space cannot be a bathroom, and must be shielded from view and free from intrusion from coworkers and the public. 29 U.S.C. § 207(r)(1)(B). This law only applies to employees who are covered by the FLSA’s overtime requirements (i.e., non-exempt employees) Employers are prohibited from retaliating against an employee who has made a complaint about a violation of this law.

The Pregnancy Discrimination Act, which applies to employers that have 15 or more employees, amended Title VII of the Civil Rights Act of 1964 to explicitly prohibit employment discrimination (e.g., termination, failure to hire or promote, demotion, harassment, retaliation) on the basis of “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. §2000e(k). This includes a prohibition against discrimination on the basis of lactation and breastfeeding. See e.g., E.E.O.C. v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013) (lactation is a related medical condition of pregnancy for purposes of the PDA). The Pregnancy Discrimination Act also requires that employers treat employees affected by pregnancy, childbirth, and related medical conditions the same as other employees who are similar in their ability or inability to work. 42 U.S.C. §2000e(k). The Equal Employment Opportunity Commission and courts have interpreted this provision to require employers to give employees with lactation-related needs the same ability to address those needs as is given to non-lactating employees under other circumstances. See e.g., Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1258 (11th Cir. 2017) (employer violated the Pregnancy Discrimination Act by refusing to accommodate breastfeeding employee’s lactation-related needs with an alternate work assignment when it provided accommodations to other, non-breastfeeding employees).

State Laws Protecting Breastfeeding Employees

This guide examines three categories of workplace laws impacting breastfeeding or pumping in each of the fifty states, Puerto Rico, and the District of Columbia:

Break Time and Space: These laws require employers to allow employees to express breast milk and/or breastfeed during existing breaks at work and/or require employers to provide additional break time for that purpose. Laws in this category may also require employers to provide a space for expressing breast milk. Some laws include additional requirements, such as requiring that the space not be a bathroom, or that it have an electrical outlet.

Reasonable Accommodation: These laws require employers to adjust how, when, or where the employee works or make other changes that accommodate the employee’s lactation-related needs. Reasonable accommodations may include break time, space for expressing breast milk, protection from hazardous materials, the ability to breastfeed at work, temporary transfers to light duty or less hazardous positions, or other modifications that accommodate the employee’s individual needs.

Anti-Discrimination: These laws prohibit employers from discriminating against an employee due to breastfeeding or lactation, for example by firing, demoting, refusing to hire, harassing, or taking other adverse action because the employee is breastfeeding. Some anti-discrimination laws also require employers to treat employees who are affected by conditions related to pregnancy and childbirth the same as other employees who are similar in their ability to work. Courts may interpret such provisions to require employers to accommodate needs related to lactation and breastfeeding to the extent they accommodate other conditions and needs. See e.g., Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1258 (11th Cir. 2017). Note that some anti-discrimination laws explicitly prohibit discrimination on the basis of breastfeeding or lactation. Other laws prohibit discrimination on the basis of other characteristics that have been interpreted by courts to include breastfeeding and lactation, such as sex, pregnancy, childbirth, or conditions related to pregnancy and childbirth. See e.g., E.E.O.C. v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013) (lactation is a medical condition related to pregnancy under Title VII; collecting cases so holding). Note that in some jurisdictions, courts interpret state-level anti-discrimination statutes in accordance with Title VII of the Civil Rights Act.

Other Relevant Laws: Every state has enacted a statute allowing women to breastfeed in any public location, or any location public or private, where the mother and child are authorized to be present. Some states require that certain locations like shopping malls or airports have accessible areas designed for breastfeeding. Although not included in the chart below, these statutes may affect an employee’s ability to express breast milk at work. For a catalog of these and related breastfeeding laws, visit http://www.ncsl.org/research/health/breastfeeding-state-laws.aspx.