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Federal Law Broadens Accommodations for Lactating Employees

Federal law requires employers to accommodate lactating employees as part of the “Patient Protection and Affordable Care Act” (an amendment to Section 7(r) of the Fair Labor Standards Act).

The law requires employers to:

  • Provide a reasonable break time for an employee to express breast milk for her nursing child for one (1) year after the child’s birth;
  • Provide reasonable break time each time the employee has need to express the milk; and,
  • Provide a place for the employee to express breast milk, which:
    1. Is not a bathroom; and,
    2. Is shielded from view and free from intrusion from coworkers and the public.

The employer is not required to compensate an employee for the break time used to express milk.

An employer with less than 50 employees is not subject to these requirements if the requirements would impose an undue hardship on the employer.

The law also states that it does not preempt state law which provides greater protections. California has long required employers to provide lactation accommodation. Labor Code sections 1030-1033 set forth the requirements, which are substantially similar to the federal law, but have some differences.

California Labor Code requires that employers, including public entities, must:

  • Provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. This break time shall, if possible, run concurrently with any break time provided to the employee.
  • Provide an employee with a private area to express milk that follows the federal requirements, but is also in close proximity to the employee’s work area.
  • Allow the lactation accommodation for the entire length of time required by the employee. In other words, do not limit the accommodation to the one (1) year after the birth of the child.
  • Allow the employee a break at any time she needs to express milk. The only breaks that must be paid are those to which the employee is otherwise entitled.
  • Make reasonable efforts to provide the employee with a room or other location to express breast milk, which:
    1. Is private;
    2. Is not a toilet stall; and,
    3. Is in close proximity to the employee’s work area.

An employer is not required to provide this break time if to do so would seriously disrupt the operations of the employer.

A comparison of the two statutes follows:

Federal Law

Must provide a reasonable break time to express milk.

Must provide a break each time there is a need to express milk. Breaks need not be paid.

Limited to first year after birth of child.

Employers with less than 50 employees may be exempt from the statute if the requirements cause an undue hardship.

If more than 50 employees, must provide private area to express milk. If less than 50 employees, must provide a private area to express milk, unless there is an undue hardship.

Private area cannot be a bathroom.

California Law

Must provide a reasonable break time to express milk.

Breaks to express milk should, where possible, run concurrently with regular break times. Additional break times need not be paid.

No limit on time for accommodation.

Employers of any size may be exempt from the break time requirement if the break time would seriously disrupt operations.

Employers need only “make reasonable efforts” to provide the employee with a private area to express milk.

Private area can be in a bathroom, but not a toilet stall.

In order to comply with the most protective requirements, employers should:

  1. Provide an employee with a private area to express milk that follows the federal requirements, but is also in close proximity to the employee’s work area.
  2. Allow the lactation accommodation for the entire length of time required by the employee. In other words, do not limit the accommodation to the one (1) year after the birth of the child.
  3. Allow the employee a break at any time she needs to express milk. The only breaks that must be paid are those to which the employee is otherwise entitled.

If you believe one of the exceptions applies, you are encouraged to consult legal counsel.

This update is informational, and not intended as a substitute for legal advice. If you have questions or concerns regarding lactation accommodations, please contact us.

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