How the FLSA and State Laws Protect Lactating Mothers

How the FLSA and State Laws Protect Lactating Mothers

The Fair Labor Standards Act (FLSA), a federal law, includes a provision to allow new mothers to express milk at the workplace. More specifically, the Patient Protection and Affordable Care Act amended the FLSA to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The law applies to hourly, non-exempt employees, but employers are encouraged to allow exempt employees to express milk as well.

Several states have lactating laws as well. For example, Alaska allows mothers to breastfeed in any private space they are allowed to be in, bu does not go beyond the FLSA. Arkansas requires employers to support all breastfeeding employees by providing break time and a space (other than a bathroom) to pump at work. The FLSA also specifies that the space allotted for expressing milk not be a toilet stall. The space must be private and preferably near a sink. California law also requires workplace lactation spaces for all employees that are not bathrooms and that the spaces have electrical outlets for the breast pumps, be close to the employee’s work space, have a space for the employee to sit and a space for the breast pump to be placed. California also specifies that the space have running water and a refrigerator to store the milk. Employers with fewer than fifty employees may request a hardship exemption. Colorado goes farther than the FLSA, which only protects lactating mothers for one year, by allowing mothers to express milk for two years. Colorado also covers exempt employees. Connecticut, like the FLSA and California and Colorado, requires employers to provide a private place and break time (unpaid) for mothers to express milk. Delaware also requires a private place and break time. Florida, like many states, does not have lactation laws of its own; the FLSA still provides coverage to Florida employees, however. Until recently, Georgia’s law merely encouraged, not required, employers to provide space and break time to mothers, but now Georgia requires paid break time for lactation. Hawaii’s law applies to employers with more than fifty employees, and it requires time and space (other than a bathroom) for the expression of milk. Illinois requires break time (not unpaid) and space (other than a bathroom) for lactating moms. In Indiana, state law requires employers with twenty-five or more employees to provide all breastfeeding mothers a private space (other than a bathroom) to express milk, and paid break time. Iowa, like Kansas, is another state that does not have its own lactation laws, leaving it to the FLSA. Kentucky law requires employers to “reasonably accommodate” pregnant and breastfeeding employees with a space to express milk that is not a bathroom. In Louisiana, only public schools have protections for mothers to express milk; in all other employment situations, only the FLSA applies. In Maine, all employees are covered for up to three years. Maine also has a law that protects pregnant workers. Maryland has no laws of its own; only the FLSA applies. In Massachusetts, employers with six or more employees must provide all breastfeeding employees with reasonable break time and a space (other than a bathroom) to pump. Further, like California, the lactation space must include an electrical outlet, a table, and a chair. Michigan relies on the FLSA. Minnesota provides that all employers must provide all employees with break time and a private space to express. Mississippi requires break time for employees to express. Missouri relies on the FLSA. In Montana, all public employees, hourly and exempt, are allowed time and private space to express. Nebraska’s law applies to employers with fifteen or more employees; they are allowed break time and a private space. Nevada’s law, like the FLSA, allows for employers with fifty or fewer employees to apply for a hardship exemption, but otherwise, employers are required to provide break time and a private space for one year. New Hampshire has no laws of its own. New Jersey law requires employers to provide all breastfeeding employees with break time and a space (other than a bathroom) to pump at work. Similarly, New Mexico and New York provide coverage to all employees, not just hourly. New York also allows coverage for up to three years. North Carolina, North Dakota, and Ohio rely on the FLSA. In Oklahoma, state-owned buildings and state employers must provide break time and private space (not a bathroom) to express. The law encourages but does not require private employers to do likewise. In Oregon, employers must provide a reasonable rest time after expression to employees; employers with ten or fewer employees may request an undue hardship exemption. Pennsylvania relies on the FLSA. Rhode Island requires reasonable accommodation in the form of break time and a place to express. South Carolina law requires that employers with fifteen or more employees provide “reasonable accommodations” to employees with “medical needs arising from pregnancy, childbirth, or related medical conditions.” The law requires that all employers make reasonable efforts to provide break time and space to express. South Dakota has no lactation laws. Tennessee requires employers with one or more employees to provide reasonable accommodation, in the form of break time and a private nonbathroom space. In Texas, only public employees enjoy the benefit of the law providing break time and a private space. Utah passed a resolution encouraging private employers to provide break time and a private space to pump. Public employers must provide accommodation. In Vermont, all employees are covered, not just hourly. Employers must provide break time and a nonbathroom space to express. Virginia provides protection to breastfeeding students and teachers, as well as employees with employers employing five or more employees. The protections extend to pregnancy and related conditions. Washington exceeds the protections of the FLSA by requiring break time and private spaces to pump milk for up to two years. In Washington, the law applies to employers with fifteen or more employees. West Virginia relies on the FLSA, as do Wisconsin and Wyoming.

Which Law to Follow?

Employers in states with lactation laws that exceed the limits of the FLSA should be aware that state law supersedes the FLSA. Employers should therefore follow the more lenient state laws when applicable.

Conclusion

Employers can run afoul of state and federal law if they do not provide break time and a private space for new mothers to express milk. Under the FLSA, the time is one year, but some states have different requirements, so employers should check their state laws as well as federal.

About The Author

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Eric Howard is a legal editor who lives in Los Angeles.

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