Breastfeeding in the Workplace

David Keene, II
March 20, 2008 — 2,831 views  
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While there is seemingly a federal law that governs all workplace issues, there isn’t one that provides the right to breastfeed or express milk in the workplace. As such, the states have responded with a patchwork of laws ranging from the very general to the quite specific to address this issue. Within the past year, the District of Columbia, Montana (public employers only), New Mexico, New York, and Oregon all enacted breastfeeding laws. Wyoming and Arkansas passed laws in 2007 stating that a mother has a right to breastfeed an infant child in any public places where the mother may legally be, which does not expressly specify, but could be interpreted to include, places of employment. In general, state breastfeeding laws all include the following: • A requirement or strong recommendation that employers provide a reasonable amount of break time for nursing mothers to express breast milk. • that employers make reasonable efforts to provide employees with a private and secure room or other location, other than the bathroom or a toilet stall, in close proximity to the work area to express milk. • that this accommodation be provided for at least one year. Employers in states without time limits for accommodations may, therefore, need to accommodate a nursing mother indefinitely. The following provides a general description of the laws throughout the states: • Thirty-nine states have laws with language specifically allowing women to breastfeed in any public or private location (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Utah, Tennessee, Texas, Vermont, and Wyoming). • Twenty-one states exempt breastfeeding from public indecency laws (Alaska, Arizona, Arkansas, Florida, Illinois, Kentucky, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington and Wisconsin). • Fourteen states have laws related to breastfeeding in the workplace (California, Connecticut, Georgia, Hawaii, Illinois, Minnesota, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, and Washington). • Twelve states exempt breastfeeding mothers from jury duty (California, Idaho, Illinois, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Nebraska, Oklahoma, Oregon and Virginia). • Four states have implemented or encouraged the development of a breastfeeding awareness education campaign (California, Illinois, Missouri, and Vermont). A sampling of state laws Indiana Indiana requires that private businesses with 25 or more employees to make reasonable efforts to provide a private location, other than a toilet stall, where an employee can express breast milk during any period away from the employee's assigned duties. The law requires the employer to provide a private location if there are time periods where an employee is not required to perform assigned duties. Further, Indiana's law is the first of its kind to require employers to accommodate the storage of breast milk. It requires that, to the extent reasonably possible, an employer shall either provide a refrigerator or other cold storage space for keeping milk that has been expressed or allow the employee to provide the employee's own portable cold storage device for keeping expressed milk. New York New York law requires all employers—regardless of the number of employees—to allow employees who are nursing mothers to express breast milk during break periods. The law mandates that opportunities to express milk must be given during either paid or unpaid breaks, but does not require the creation of paid break periods. If existing breaks, including meal time, are insufficient to meet the reasonable needs of an employee wishing to express milk, the employer must offer additional time but need not compensate the employee for that time. The law affords this protection for a three-year period of time following the birth of an employee’s child. In addition, the law calls upon employers to make “reasonable efforts” (undefined by the statute) to provide private spaces suitable for these activities near the workplace. The statute does not create a private right of action; an employee may not sue her employer in state court to enforce the provisions of this law, but must instead file a complaint with the appropriate state administrative body. The New York State Department of Labor is responsible for enforcing this provision of the Labor Law, and it is expected to construe its provisions liberally in favor of employees. Consequently, employers are encouraged to adjust their policies and handbooks accordingly and to make every reasonable effort to designate an appropriate private space in their workplace. Tennessee In Tennessee (where I am located), the law allows a mother to breastfeed an infant 12 months or younger anywhere the mother is allowed to be, and prohibits local governments from criminalizing breastfeeding or restricting breastfeeding. Additionally, employers are required to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location (other than a toilet stall) in close proximity to the work place for this activity. Analysis In view of these legal developments, employers should consider: 1. Establishing a lactation policy in their employee handbooks. 2. Training managers, supervisors, and human resources personnel on the right of women to breastfeed and/or express breast milk under state law. 3. Designating a private location that is not within the bathroom for women to express breast milk. 4. Assessing the possibility of providing a separate refrigerator for breast milk. 5. Notifying employees upon their return from maternity leave of the company's policy on lactation accommodation. 6. Employers should consult employment counsel attorneys for the specifics of the laws in their jurisdiction(s) on this issue and for advice on how to address this issue at their workplaces. Sample policy A search of the internet will provide you with numerous model workplace breastfeeding policies. Such policies are, however, generally written by the last people you want writing your company’s policies: unions, international workers’ groups, and foreign governments. I have drafted a policy for you to use as an outline from which to create a policy for your workplace. [Company’s ] Breastfeeding Policy 1. Women shall be provided a place to breastfeed or express their milk. A lactation room is provided as a private and sanitary place for women to express their milk during work hours. Women may not use their private office area for breastfeeding or milk expression. 2. A refrigerator will be made available for safe storage of expressed breast milk. Women may use their own cooler packs to store expressed breast milk, or may store milk in a designated refrigerator/freezer. Women must provide their own containers, clearly labeled with name and date. 3. Women shall be provided flexible breaks to accommodate breastfeeding or milk expression, pursuant to [Company] Policy No. _____. 4. Employee orientation will include information about the company's breastfeeding policy. The company's breastfeeding policy will be communicated to all current employees. The policy will be placed in the employee handbook and covered as part of new employee orientation training. A few notes on this policy: 1. While most policies are gender neutral, this policy should be written for women. Unless things have changed greatly since my college biology classes, only women can breastfeed and express milk. 2. While being aware of point number 1, during employee orientation this policy should be explained to all employees, including males. Men should be aware that breastfeeding/expression is allowed at work. 3. This policy establishes a separate area for breastfeeding/expression. I strong recommend this for the following reasons: a. Employee offices may not be particularly clean. Employees eat, sneeze, cough, etc., at their desks. A designated lactation room can be thoroughly sanitized by your cleaning crew every night. b. A designated area should eliminate “accidental” interruptions of women breastfeeding/expressing (“Oh, I guess you didn’t hear me knock!”), and eliminate truly accidental interruptions. It should be made clear to your employees that if the door to the lactation room is shut, stay out. This should guarantee privacy. If you have any comment or questions about this or any other labor or employment law matter, please contact David Keene at 423.928.0181 Within the past year, the District of Columbia, Montana (public employers only), New Mexico, New York, and Oregon all enacted breastfeeding laws. Wyoming and Arkansas passed laws in 2007 stating that a mother has a right to breastfeed an infant child in any public places where the mother may legally be, which does not expressly specify, but could be interpreted to include, places of employment. In general, state breastfeeding laws all include the following: 1. A requirement or strong recommendation that employers provide a reasonable amount of break time for nursing mothers to express breast milk. 2. That employers make reasonable efforts to provide employees with a private and secure room or other location, other than the bathroom or a toilet stall, in close proximity to the work area to express milk. 3. That this accommodation be provided for at least one year. Employers in states without time limits for accommodations may, therefore, need to accommodate a nursing mother indefinitely. The following provides a general description of the laws throughout the states: 1. Thirty-nine states have laws with language specifically allowing women to breastfeed in any public or private location (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Utah, Tennessee, Texas, Vermont, and Wyoming). 2. Twenty-one states exempt breastfeeding from public indecency laws (Alaska, Arizona, Arkansas, Florida, Illinois, Kentucky, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington and Wisconsin). 3. Fourteen states have laws related to breastfeeding in the workplace (California, Connecticut, Georgia, Hawaii, Illinois, Minnesota, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, and Washington). 4. Twelve states exempt breastfeeding mothers from jury duty (California, Idaho, Illinois, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Nebraska, Oklahoma, Oregon and Virginia). 5. Four states have implemented or encouraged the development of a breastfeeding awareness education campaign (California, Illinois, Missouri, and Vermont). A sampling of state laws... Indiana requires that private businesses with 25 or more employees to make reasonable efforts to provide a private location, other than a toilet stall, where an employee can express breast milk during any period away from the employee's assigned duties. The law requires the employer to provide a private location if there are time periods where an employee is not required to perform assigned duties. Further, Indiana's law is the first of its kind to require employers to accommodate the storage of breast milk. It requires that, to the extent reasonably possible, an employer shall either provide a refrigerator or other cold storage space for keeping milk that has been expressed or allow the employee to provide the employee's own portable cold storage device for keeping expressed milk. New York law requires all employers—regardless of the number of employees—to allow employees who are nursing mothers to express breast milk during break periods. The law mandates that opportunities to express milk must be given during either paid or unpaid breaks, but does not require the creation of paid break periods. If existing breaks, including meal time, are insufficient to meet the reasonable needs of an employee wishing to express milk, the employer must offer additional time but need not compensate the employee for that time. The law affords this protection for a three-year period of time following the birth of an employee’s child. In addition, the law calls upon employers to make “reasonable efforts” (undefined by the statute) to provide private spaces suitable for these activities near the workplace. The statute does not create a private right of action; an employee may not sue her employer in state court to enforce the provisions of this law, but must instead file a complaint with the appropriate state administrative body. The New York State Department of Labor is responsible for enforcing this provision of the Labor Law, and it is expected to construe its provisions liberally in favor of employees. Consequently, employers are encouraged to adjust their policies and handbooks accordingly and to make every reasonable effort to designate an appropriate private space in their workplace. In Tennessee (where I am located), the law allows a mother to breastfeed an infant 12 months or younger anywhere the mother is allowed to be, and prohibits local governments from criminalizing breastfeeding or restricting breastfeeding. Additionally, employers are required to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location (other than a toilet stall) in close proximity to the work place for this activity. Analysis In view of these legal developments, employers should consider: 1. Establishing a lactation policy in their employee handbooks. 2. Training managers, supervisors, and human resources personnel on the right of women to breastfeed and/or express breast milk under state law. 3. Designating a private location that is not within the bathroom for women to express breast milk. 4. Assessing the possibility of providing a separate refrigerator for breast milk. 5. Notifying employees upon their return from maternity leave of the company's policy on lactation accommodation. 6. Employers should consult employment counsel attorneys for the specifics of the laws in their jurisdiction(s) on this issue and for advice on how to address this issue at their workplaces. Sample policy A search of the internet will provide you with numerous model workplace breastfeeding policies. Such policies are, however, generally written by the last people you want writing your company’s policies: unions, international workers’ groups, and foreign governments. I have drafted a policy for you to use as an outline from which to create a policy for your workplace. [Company’s ] Breastfeeding Policy 1. Women shall be provided a place to breastfeed or express their milk. A lactation room is provided as a private and sanitary place for women to express their milk during work hours. Women may not use their private office area for breastfeeding or milk expression. 2. A refrigerator will be made available for safe storage of expressed breast milk. Women may use their own cooler packs to store expressed breast milk, or may store milk in a designated refrigerator/freezer. Women must provide their own containers, clearly labeled with name and date. 3. Women shall be provided flexible breaks to accommodate breastfeeding or milk expression, pursuant to [Company] Policy No. _____. 4. Employee orientation will include information about the company's breastfeeding policy. The company's breastfeeding policy will be communicated to all current employees. The policy will be placed in the employee handbook and covered as part of new employee orientation training. A few notes on this policy: 1. While most policies are gender neutral, this policy should be written for women. Unless things have changed greatly since my college biology classes, only women can breastfeed and express milk. 2. While being aware of point number 1, during employee orientation this policy should be explained to all employees, including males. Men should be aware that breastfeeding/expression is allowed at work. 3. This policy establishes a separate area for breastfeeding/expression. I strong recommend this for the following reasons: a. Employee offices may not be particularly clean. Employees eat, sneeze, cough, etc., at their desks. A designated lactation room can be thoroughly sanitized by your cleaning crew every night. b. A designated area should eliminate “accidental” interruptions of women breastfeeding/expressing (“Oh, I guess you didn’t hear me knock!”), and eliminate truly accidental interruptions. It should be made clear to your employees that if the door to the lactation room is shut, stay out. This should guarantee privacy. If you have any comment or questions about this or any other labor or employment law matter, please contact David Keene at 423.928.0181

David Keene, II

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David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.