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National Laws Protecting Lactating Employees
The Break Time for Nursing Mothers section of the Fair Labor Standards Act, as updated in 2023 by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), protects most employees nationwide. The law requires employers of all sizes to 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. § 218d. The lactation space cannot be a bathroom and must be shielded from view and free from intrusion from others. Employers with fewer than 50 employees must provide break time and space under this law but may be excused if these requirements would impose a significant difficulty or expense (an “undue hardship”) in a particular case. Undue hardship is rare, and employers with fewer than 50 employees are almost always required to provide this break time and space.
Pilots and flight attendants are not covered by the federal Break Time for Nursing Mothers requirements, and special rules apply to certain rail carrier and motorcoach employees. See this guide for more information on how the Break Time for Nursing Mothers law applies to those transportation workers. Keep in mind that these transportation workers often have rights under other federal and state laws.
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 on the basis of “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. §2000e(k). Discrimination banned by this law can include firing, refusing to hire or promote, demoting, harassing, or retaliating against an employee on the basis of lactation/breastfeeding. . 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 (EEOC) 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. For example, an employer that gives light duty assignments to employees with injuries may also be required to give the same to workers who need light duty for reasons related to lactation.
The Pregnant Workers Fairness Act, which goes into effect nationwide on June 27, 2023 will require employers to make reasonable accommodations for employees who need them because of limitations related to pregnancy or pregnancy-related conditions, like childbirth and lactation/breastfeeding. Reasonable accommodations for lactation/breastfeeding may include break time and space for pumping, schedule changes or flexible work, light duty, time off for medical appointments, remote work, a change in job duties to avoid toxic chemicals that can enter breast milk, or other work modifications. When an employee requests an accommodation, their employer must respond and have a good-faith conversation with the employee about the employees’ needs and what changes could be made to meet those needs. An accommodation must be provided unless it would impose an undue hardship (a significant difficulty or expense) on the employer. When the Pregnant Workers Fairness Act goes into effect on June 27, 2023, it will apply to employers with 15 or more employees. The law will also make it illegal to retaliate against or punish an employee or job applicant for requesting an accommodation.
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.
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Our guide for employees, Talking to Your Boss About Your Pump, contains more information about the rights that may protect your ability to pump at work, plus helpful hints and additional resources for talking with your employer.
Employers who want to learn more about their obligations to provide time and space for breastfeeding employees have a number of resources available to assist them.
The US Breastfeeding Committee has additional information regarding a number of state laws, as well as contact information for state enforcement agencies and local breastfeeding support organizations.
This reference guide provides an overview of the federal and state laws protecting breastfeeding employees in the workplace. This information is based on laws and court decisions identified at the time this guide was updated, August 2020. There may be statutes or regulations protecting breastfeeding employees that are not identified below, including laws that may have passed after the creation of this guide. This document is for informational purposes only. The application and impact of laws change based on the facts involved. For legal advice, seek the counsel of an attorney. The Center for WorkLife Law operates a free legal hotline that provides information about workplace rights and makes referrals to attorneys, as appropriate. Email [email protected] or call 415-703-9276.