Nursing Mothers in the Workplace

Eight years ago, ELS Partner, Chandra C. Davis became a mother to a beautiful daughter. She, like many women, decided to breastfeed; but Davis also worked full time as an attorney. One morning, Davis had a deposition to attend and arranged to have two rooms reserved: one for the deposition and the other to use as a room to express breast milk. Davis later became aware that her opposing counsel was also nursing a young child. Davis informed opposing counsel of the second reserved room and both women set aside a time to break from the deposition to breastfeed.

Women have breastfed throughout history. The places and mechanisms for how women breastfeed have changed, specifically, the workplace. The Patient Protection Affordable Care Act (“Affordable Care Act”) amended the Fair Labor Standards Act (“FLSA”) to require employers to offer reasonable break time for employees to express breast milk for a nursing child one year after the child’s birth and provide a place, other than a bathroom, to be used by employees to express breast milk.[1] The federal law has no limitation on the amount of breaks used for expressing breast milk and only requires the place used for expressing milk be free from intrusion by the public or coworkers and shielded from view.[2]

Like the FLSA, twenty-seven states, the District of Columbia and Puerto Rico have created similar laws to extend protections to working nursing mothers. Specifically, Georgia permits an employer to “provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The employer may make reasonable efforts to provide a room or other location (in close proximity to the work area), other than a toilet stall, where the employee can express her milk in privacy. The break time shall, if possible, run concurrently with any break time already provided to the employee.”[3] This Georgia law is voluntary for employers; if providing unpaid break time for nursing mothers disrupts the regular operations of the employer, the employer is not required to follow the law.[4]

Many employers provide pump stations and online booking services to reserve times in lactation rooms, however, they are not required to. The Department of Labor provides guidance for compliance with the Break Time for Nursing Mothers Law.[5] For instance, employers are not required to compensate nursing mothers for breaks to express milk, but if the employer currently provides compensated breaks, an employee may use such break to express milk.[6] Under the FLSA, employers are not required to create a permanent, dedicated space for use by nursing employees.[7] However, the employer must provide at a least a temporary space or convert a space for nursing employees to express milk.[8] An employer need only provide lactation space when it has a nursing employee. Thus, if there is no employee that needs to express breast milk, the employer does not need to provide a space.

Women work. Women have children. Women who work, nurse their children. Employers and legislatures are making strides in protecting women (and their children) and their right to breastfeed.

For women concerned about returning to work and how to handle nursing, review The Ultimate Guide to Survive Breast Pumping at Work by Jenny Silverstone for some great tips!

The Ultimate Guide to Survive Breast Pumping at Work

[1] 29 U.S.C. § 207; referred to as the Break Time for Nursing Mothers Law

[2] Id. at footnote 1.

[3] O.C.G.A. § 34-1-6.

[4] Id. at footnote 3.

[5] Wage & Hour Division, Frequently Asked Questions-Break Time for Nursing Mothers, http://www.dol.gov/whd/nursingmothers/faqBTNM.htm (last visited Oct. 21, 2015)

[6] Id at footnote 5.

[7] Id at footnote 5.

[8] Id. at footnote 5.