Thursday, March 1, 2012

Lactation Accommodations for Nursing Mothers in the Workplace

Child-bearing is essential to our society. While there have been significant advances towards gender equality, unfortunately, discrimination against women because of pregnancy continues to be a common practice in society, particularly in the workplace. One common form of discrimination is failure to accommodate nursing mothers’ right to break time to express milk for their infant child.

Health professionals and public health officials promote breastfeeding to improve infant health. Both the state and federal legislatures have recognized this and enacted laws in response to promote lactation accommodations. On March 23, 2010, Patient Protection and Affordable Care Act (“PPACA”) was signed into law and amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth…” and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public…” The accommodation rights under FLSA were modeled after California Labor Code sections 1030 and 1031 which were adopted in 2001.

However, one major difference exists between the two legislations. Under the California Labor Codes, employers can opt out of lactation accommodations by establishing undue hardship, such as inability to continue functioning as a business. Under FSLA, only employers with fewer than 50 employees are not subject to the accommodation requirements if compliance with the provision would impose an undue hardship.  Additionally, FLSA’s accommodation rights are limited to 1 year after the child’s birth whereas accommodation rights under the California Labor Codes are not restricted to the 1 year period.  This is a significant distinction for a mother seeking accommodation more than 1 year after the birth of her child.  

Both section 7 of the FLSA, and California Labor Code sections 1030 and 1031 have reporting mechanisms that allow employees to report on employers who are violating their lactation accommodations.  The Wage and Hour Division (WHD) of the Department of Labor administers and enforces FLSA. If you would like to file a complaint with the WHD because you believe your employer has violated the break time for nursing mothers requirement under the FLSA, you should call the toll-free WHD number 1-866-487-9243.  The Bureau of Field Enforcement (BOFE) of the Division of Labor Standard Enforcement administers and enforces Labor Code sections 1030 and 1031. To file a claim visit

It is important to note that lactation accommodation violations by employers are often coupled with other employee rights violations that are protected by laws such as the Pregnancy Discrimination Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the California Family Rights Act, and the Fair Employment and Housing Act. Contact our experienced employment law team to discuss your options.