Jane returns to work from maternity leave. She is breastfeeding and needs to pump or express milk at work. As an employer, do you know what legal obligations you have to Jane? This article provides some guidance.
Under federal law, the Fair Labor Standards Act (FLSA) requires that employers provide unpaid, reasonable breaks to nursing mothers to express milk. The mother may take a break as often as she needs for up to 1 year following the birth of her child. The employer must offer these breaks to all nursing mothers who are “non-exempt” employees under the FLSA.
The FLSA also requires the employer to provide a private, sanitary place with a flat surface where the mother can express milk. This place is often known as a “lactation room.” The lactation room cannot be a bathroom. It must be shielded from view and free from the intrusion of coworkers and customers. Waiting periods to use the lactation room are frowned upon, but short delays, under most circumstances, are probably all right.
There is a special exception for certain smaller employers. Employers who have less than 50 employees and can show that offering these accommodations would be an undue hardship are not required to provide them. The Department of Labor has warned that both criteria must be satisfied and the bar is high for “undue hardship.”
Many states, including Nebraska, also have laws that protect nursing mothers. If state law provides stricter requirements for employers than federal law, the employer must follow the stricter requirements.
Nebraska law protects all nursing mothers who need to pump in the workplace. It does not matter whether they are “exempt” or “non-exempt” under the FLSA. The Nebraska Fair Employment Practices Act (NFEPA) provides that an employer cannot discriminate against an employee who has given birth by failing to give her a “reasonable accommodation.” Reasonable accommodation includes giving a nursing mother break time and appropriate facilities to express milk. Employers subject to the NFEPA must offer breaks to nursing employees, regardless of whether they are exempt or non-exempt.
If you are concerned about whether you are in compliance with federal or state law regarding an employee’s right to express milk in the workplace, be sure to visit with an experienced employment law attorney.