L&E issues to know: Breastfeeding in the workplace

The accommodation of an employee’s pregnancy now extends far beyond maternity leave

When an employee returns to work after giving birth, the employer must be mindful of the employee’s rights to breastfeed or express breast milk in the workplace. In 2010, the Patient Protection and Affordable Care Act, sometimes known as “Obamacare,” amended Section 7 of the Fair Labor Standards Act (FLSA) to require covered employers to provide non-exempt, nursing mother employees “reasonable” break times to express breast milk. Employers must also provide a place of privacy for these breaks. The amendments to the FLSA permit nursing mothers to take breaks during each work day, each time they are needed, for one year after a child’s birth. Employers must also set aside an area that that is “shielded from view and free from intrusion from coworkers and the public.” This space can be any vacant area as long as it has a locking door, otherwise meets the provision’s privacy requirements, and is not a bathroom stall (which the law specifically prohibits as an option).

Significantly, non-exempt employees do not have to be paid for any time spent taking these breaks, but employers should be conscious of a couple potential pitfalls.

Contributing Author

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Chad W. Moeller

Chad W. Moeller is a partner at Neal, Gerber & Eisenberg. He represents corporations and not-for-profit organizations of all sizes in employment matters in federal...

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Contributing Author

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Natalie J. Scruton

Natalie J. Scruton is an associate in the Labor & Employment Practice at Neal, Gerber & Eisenberg LLP (Chicago). She counsels companies – public and...

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