The federal government as well as many states have laws requiring that employers provide break time for nursing mothers. Recognizing the importance of breast feeding and the difficulties that mother-child separation during work hours can cause, the federal government, 25 states, the District of Columbia and Puerto Rico all have enacted important labor laws to protect a nursing mother's rights in the workplace.
See FindLaw's Wage and Hour Laws section for related articles.
Federal Protections for Nursing Mothers
The primary federal law protecting working and nursing mothers is the federal Fair Labor Standards Act (FLSA), which was updated by the Patient Protection and Affordable Care Act, often referred to as Obamacare, to require break time for nursing mothers. Under the FLSA, employers must provide:
Under the FLSA, an employer must provide break time as needed by the nursing mother. Break time doesn't have to be compensated, but if the employee already has paid breaks, this paid time can be used to expel breast milk.
Who Is Covered by Federal Nursing Mother Laws?
The FLSA covers most employees, but not all. Any employee who is entitled to overtime pay under the FLSA is also entitled to these breaks. Employees who are commonly not covered by the FLSA include retail or service employees who make most of their earnings from commission, some computer professionals, some drivers and mechanics, farm workers, and executive, administrative and professional employees. Thus, under the FLSA, a salaried manager may not be legally entitled to break time as a nursing mother though the hourly employees she manages would likely have access to such breaks.
The FLSA also provides certain exceptions for small businesses. Employers with less than 50 employees aren't required to provide break time for nursing mothers if compliance would impose an "undue hardship."
However, an employee who isn't covered by FLSA may still be entitled to nursing mother breaks under state laws, which may apply to all employees.
State Laws Protecting Nursing Mother Rights in the Workplace
Federal law establishes the minimum break time for nursing mothers requirements. However, states can (and some do) offer greater protections for a nursing mother's rights in the workplace. Twenty-five states, the District of Columbia and Puerto Rico require employers to provide break time to nursing mothers. These state laws may be stronger than the requirements of the FLSA in that they:
Unlike the FLSA, many of state nursing mother laws apply to all employers or employees. For example, California requires that every employer provide a reasonable amount of break time to an employee desiring to express breast milk for the employee's child. A salaried administrator would be entitled to breaks as a nursing mother under California law, despite the fact that she may not be covered under the federal law.
Some states also don't provide the same small business exceptions as federal law. For example, the Illinois Nursing Mothers in the Workplace Act covers all employers with more than 5 employees and doesn't include a provision allowing employers to claim hardship and deny break time to nursing mothers. Many other state laws, however, do allow employers to evade break requirements if breaks would interfere with their normal business.
The FLSA limits required breaks to the first year following an infants birth. Several state laws, such as New York's, make no mention of time limits. This means that women who are nursing beyond the first year of their child's birth may still be covered by state nursing mother laws.
Prohibitions on Discrimination and Retaliation
The FLSA prohibits an employer from retaliating against a worker who asserts her rights under the FLSA. An employee who files a complaint under the FLSA or who participates in an investigation can't be punished for doing so. Several states also prohibit employers from discriminating against nursing mothers.
How a Lawyer Can Help
If you're a nursing mother or an employer and you have questions about a nursing mother's rights in the workplace, consider contacting an experienced employment law attorney to discuss the laws applicable in your situation.