March 29, 2021

 

Nursing Mothers in the Workplace: Legal Requirements and Kind Accomodations

pumping breastmilk and working in office

CEDR HR Solution Center Manager Grace Godlasky walks us through the legal requirements for nusing mothers in the workplace.

During the last decade, I’ve been a nursing mother three times over. When I had my first child, I was finishing law school, so I pumped milk between classes in an empty study room. To let other students know the room was occupied, the door featured a little sign with the image of a cow that read “Moo! Privacy please. Nursing mother at work.” After pumping, I carted my milk around campus in an insulated freezer bag. It certainly wasn’t ideal, but it got the job done.

Following the births of my second and third children, I pumped in an office at work. Here, I had the luxury of a real refrigerator and a comfortable, enclosed space with a door. (Progress!)

Given my experience, I’d like to think that if anyone could claim to be competent in managing nursing mothers in the workplace, it’s me. And as a barred attorney and the manager of the CEDR HR Solution Center, I provide members with advice in doing just that. But despite my plethora of personal and professional experience, I’m still surprised at the persistent challenges this topic raises and the infinite situational variations that can arise.

The CEDR HR Solution Center regularly fields a wide range of questions about how to manage nursing mothers, including everything from “What is legally required?” and “What am I allowed to ask?” to “What if the mother needs too many breaks?” and “Why is this such an awkward topic?”

So to ensure you’re both competent and confident when dealing with nursing mothers in your workplace, here are some critical insights regarding legal requirements and additional accommodations. Chances are this intel will answer many of your questions.

The Law

Federal law requires that employers of all sizes provide reasonable breaks and a space for nursing mothers to express breast milk. While narrow exceptions exist for undue hardship for small employers with less than 50 employees, most employers do not meet this undue hardship standard.

These accommodations must be available for up to one year following a child’s birth. Some states, such as California, have much more specific requirements for nursing mothers in the workplace such as requiring employers to provide these breaks beyond the child’s first year.

 

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Space Requirements

Employers must offer a private space that’s free from intrusion but that is not a bathroom. However, the space doesn’t have to be dedicated to the employee all of the time. It can be a common area, such as the break room or an empty office used for storing files, as long as it can be made private when the employee needs to use it.
This requirement can be a challenge for employers with small working environments. So even if you do not have a nursing mother in the workplace at this time, it’s a good idea to assess your office’s layout and consider what you could do to accommodate this need should it arise in the future. Creative solutions, such as using room dividers, are also acceptable.
These accommodations must be available for up to one year following a child’s birth. Some states, such as California, have much more specific requirements for nursing mothers in the workplace such as requiring employers to provide these breaks beyond the child’s first year.

Break Time

What’s a reasonable break time? The law doesn’t say specifically, and each person’s needs will be slightly different. But a common length of time required for pumping can range from 15 to 30 minutes. The best approach, however, is to discuss the employee’s needs with her directly.

When your employee returns from maternity leave, simply open the conversation with a question: “Will you need breaks for pumping?” If the employee says “no,” as a best practice,  document that you asked the question, and let her know that if her needs change, she should tell you. If the employee says “yes,” gather further information about her needs and document your discussions. You can use the HR Vault and make a note in her file or add a document.

Ask her to provide as many specifics that she can regarding when she needs a break, about how long she expects to need for each break, and her timeline for how long she expects to need these breaks at work. Be clear that you’re asking for this information to ensure that you are planning the work schedule and break room availability appropriately, but that you also understand that she may need to make changes as she gets into this routine.

Be aware that some cities and states have specific requirements about what needs to be documented and timelines for how fast you need to get back to the employee with arrangements for these breaks.

 

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Compensation

The one federal law regarding break times is that you can’t make an employee clock out if the break is less than 20 minutes. Pumping breaks are an exception to that rule. Under federal law, if the employee is taking more break time than is offered to other employees, then the pumping breaks do not have to be paid time regardless of their length. 

Just ensure you’re being consistent in how you’re allowing all employees to take breaks. If you give other employees paid breaks throughout the day (e.g., a  paid 30-minute lunch break and a paid 15-minute break mid-afternoon), you cannot require a nursing mother to clock out if she’s using that same break time to pump. Similarly, if the employee is performing any work while pumping (e.g., covering phones, typing notes), she should remain on the clock.

Note, however, that we specified that this is the compensation rule under federal law. There are several states and cities that have their own laws on this topic that allow employees to stay on-the-clock for pumping breaks. Be sure that you are aware of the local laws applicable to your business which is something that we help CEDR members with all of the time.

 

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Additional Considerations

Talking about lactation with your employees can feel awkward at first. But the more you prepare yourself for these conversations and the more knowledge you have about the needs of nursing mothers, the more comfortable things will be for all involved. Here are some additional tips to help you gracefully navigate the situation.

Adjust Break Frequency According to Baby Age

Little babies eat more frequently than older infants; therefore, mothers that have given birth more recently will likely need to express milk more frequently while at work. So the younger the baby, the more frequent the breaks are likely to be.

This means that an employee who is just returning from an eight-week maternity leave might need to take breaks often (such as every two hours). Whereas, an employee who has been back from leave for six months might need less-frequent breaks (such as every four hours). 

You can help your office navigate this requirement smoothly by being open to ongoing conversations about the evolving needs of your employees and anticipating that some schedule changes may be necessary.

Plan For Storage  

Milk needs to be refrigerated. Granted, some nursing mothers will bring an insulated bag to store their milk themselves. But consider offering space in a shared refrigerator or freezer so that nursing mothers have a place to store their milk. Some state and city laws even mandate that the pumping break area have or be in close proximity to a refrigerator. 

Acknowledge Pumping Breaks as Medical Needs 

Does the term “reasonable breaks” sound familiar? It should because the law covering nursing mothers is structured much like medical-accommodation laws, and for good reason. 

Expressing breast milk is a medical need. If a nursing mother does not have the opportunity to express milk, painful clogs and a serious infection (i.e., mastitis) can occur. As a manager, treating nursing like a medical accommodation, both with the nursing mother and the rest of your staff, can help further establish the need for accommodations.

Follow Your Employee’s Lead

Remember the cow sign? I’m a pretty open person and was very comfortable with the tongue-in-cheek sign on the door. However, chances are, not all nursing mothers at my law school were comfortable with the sign nor its “Moo!” message.

So talk to your employees about their comfort levels and preferences. For example, do they prefer a sign that just says, “Do not enter”? If there are two possible spaces for nursing, which do they favor? The idea is simply to maintain an open dialogue and consider each person’s preferences while at the same time, ensuring the needs of the practice are being met.

Set Aside Time to Check In

Nursing mothers’ needs are constantly changing. So set a time—perhaps once a month—to check in with them. Inquire about how everything is going and whether their in-office nursing needs have changed. At the very least, make sure to tell them that if their needs change to please let you know.

Nursing mothers in the workplace are normal—and certainly no cause for alarm. With the preceding information, you should have the competence and confidence to establish the necessary accommodations and initiate related conversations with ease. 

 

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This post is authored by CEDR HR Solution Manager Grace Godlasky.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.