Nursing Suite Sign

Employers are called upon to provide workplace supports for employees for many reasons -- some personal, some medical. Modifications are made or flexibility is often allowed as a benefit of employment and to support employees in their effort to achieve work-life balance. When Alicia starts her work day later at 9:30 a.m. in order to drop her daughter off at kindergarten; or Ian works four ten-hour shifts in order to have a day each week to take his elderly father to medical appointments; or Cora works at home part-time to bond with her infant son and continue to meet business goals; or George takes additional restroom breaks due to a gastrointestinal disorder – these workplace supports, sometimes known as “accommodations,” enable employees to be their best by balancing work and life responsibilities, or medical needs, without fear of losing their job. These supports can benefit employers too, by enabling them to retain talented, hard-working, valuable employees that help them meet business objectives.

Women make-up nearly 47 percent of the U.S. workforce (DOL, 2017). Many of these women are working mothers with children under the age of 18 (70 percent), who are also the primary or sole earner for their household (40 percent). These statistics demonstrate that women are committed to work – that there is a need and desire to support their households and contribute to America’s economy. New working mothers often struggle with assuming a new identity that requires balancing the demands of motherhood and re-assuming their role at work after a leave of absence. Workplace supports and flexibility can ease this transition, particularly for new mothers who breastfeed. One of the challenges many new mothers face when returning to work after having a baby is garnering support for time and space to express milk or nurse their newborn at work. When workplace supports are not available, a new mother can be forced to stop nursing her baby earlier than anticipated in order to return to work, or may not return at all. Making these kinds of decisions can negatively affect the family, for health and financial reasons, as well as present a loss for the employer.

Federal, State, and Local Workplace Accommodation Requirements for Employees with Lactation-related Needs

Under the Americans with Disabilities Act (ADA), an individual with a disability is someone who has an impairment that substantially limits a major life activity. According to the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, lactation is a pregnancy-related medical condition but uncomplicated pregnancy and lactation are not disabilities covered by the ADA. Thus, under ordinary circumstances, employers are not mandated to provide lactation-related reasonable accommodations under that federal statute.

Other federal and state laws do require workplace modifications for employees who have lactation-related needs while working. The federal Patient Protection and Affordable Care Act (Affordable Care Act) and amended Section 7(r) of the Fair Labor Standards Act (FLSA) require covered employers to provide support for nursing mothers. This is known as the Break Time for Nursing Mothers provision. Specifically, covered employers must 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 the need to express the milk. Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, to be used by an employee to express breast milk.

The Break Time for Nursing Mothers provision fails to specifically address other types of lactation-related accommodation issues. For instance, employers sometimes have questions about the responsibility to provide lactation-related accommodations for employees who must travel to perform job duties. These types of situations may involve employees who travel daily in a local area, or who travel to other states or overseas on occasion. JAN Consultants can offer practical solutions for addressing the needs of employees who must travel, but technical questions about the application of the Break Time for Nursing Mothers provision are directed to the U.S. Department of Labor (DOL), Wage and Hour Division (WHD). For more information, contact the DOL at 866-487-9243, or go to https://www.dol.gov/whd/nursingmothers/.

The EEOC does seem to infer that, under the federal Pregnancy Discrimination Act (PDA), covered employers must treat employees who require lactation support in a similar manner as employees who request modifications at work for non-medical reasons. The PDA regulations and EEOC fall short of stating specifically that lactation-related accommodations are required for employees, but relevant information can be found in the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. See b. Discrimination Based on Lactation and Breastfeeding.

Finally, a growing number of states and localities, have passed legislation to enhance protections for workers who are pregnant that include requirements related to providing accommodations and strengthening the workplace rights of women with lactation-related needs. Information about state-level protections for workers who are pregnant or nursing is available through the U.S. Department of Labor, Women’s Bureau.

Ways to Support Employees with Lactation-related Needs

Regardless of workplace requirements, employers may find it useful to support employees with lactation-related needs through reasonable accommodation. JAN can offer individualized accommodation solutions that may help. Consider these ideas as a start:

  • Provide a private, sanitary space, with a locking door, as close to the employee’s work area as possible, that includes comfortable seating, a mirror, an electrical outlet, paper towels, and a sink, if possible
  • Allow reasonable break time to pump or nurse
  • Include signage on the door that indicates if the room is available or in-use
  • Provide a sign-up sheet so the room can be reserved for use
  • If the employee has a private office, allow use of the space to express milk or nurse
  • Provide a small refrigerator for the employee to store milk, or allow the employee to bring her own to work
  • Allow the employee to work at home, if reasonable
  • Limit or stop travel temporarily, if reasonable
  • Allow employee to identify and use a sanitary, private place to express milk when traveling
  • Provide a screen to create privacy to express milk in vehicle, if necessary
  • Allow use of/or provide a cooler when traveling, to store milk
  • Reserve a hotel room with a refrigerator when overnight travel is required
  • Establish and maintain a lactation support program. Toolkits are available to support employers in this effort:
  • Investing in Workplace Breastfeeding Programs and Policies
  • Making It Work: For Employers
  • Supporting Nursing Moms at Work: Employer Solutions

For additional information, see the following resources:

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