Labor and Employment

Does My Employer Have to Give Me Breaks for Breastfeeding?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Nursing employees are entitled to take breaks to express breast milk in most circumstances.

Mothers who return to work while breastfeeding have long faced a dilemma: Pumping breast milk requires time and privacy, which employers have all too often been unable or unwilling to provide. Until 2010, the legal landscape was patchy, with some states requiring employers to give employees lactation breaks and others ignoring the problem. However, this all changed when the Affordable Care Act (more commonly known as the ACA or Obamacare) passed. Now, employers nationwide must provide lactation breaks for nursing mothers. (For more on pregnancy-related work issues, see Laws Protecting Pregnant Employees.)

Federal Law: The Affordable Care Act

Under the ACA, covered employers must provide lactation breaks to nursing mothers. An employee is entitled to lactation breaks and a suitable place to express breast milk in the workplace.

Covered Employers

All employers that are covered by the Fair Labor Standards Act (FLSA), the federal law governing wages and hours, must provide lactation breaks. The FLSA applies to all employers that do business in “interstate commerce,” which has been defined broadly enough to include all but the smallest and most local employers. Chances are good, therefore, that your employer is legally obligated to provide breaks.

However, the ACA does include an exception for employers with fewer than 50 employees that can show that providing lactation breaks would create undue hardship: significant expense or difficulty, given the size, resources, and structure of the employer. Employers with 50 or more employees must provide breaks regardless of hardship.

Break Time

The ACA requires employers to provide new mothers with lactation breaks for up to one year after giving birth. As for the duration of the breaks, federal law doesn’t require employers to give employees a set amount of time to express breast milk. Instead, the law provides that employers must give “reasonable” breaks to nursing mothers. These breaks can be unpaid under federal law. (However, some states require employers to permit employees to use their paid breaks, if any, for expressing breastmilk.)

Private Space

Employers must provide lactating employees with a private space, other than a restroom, for pumping breast milk. The space must be protected from view by other employees and members of the public. The law doesn’t require employers to provide a designated lactation room used only for that purpose, although some larger employers choose to do so. Allowing an employee to use an empty office or conference room and putting up a “do not disturb” sign would usually suffice, as long as employees cannot see into the room; an employee might need a screen or shade to block a hallway window, for example.

Retaliation

Employers may not take negative action against employees who exercise their rights under the ACA by requesting time or space to express breast milk. Employers are also prohibited from retaliating against employees for complaining, whether internally or to a government agency, that their employer has violated the law.

State Lactation Laws

Some states have their own lactation accommodation laws, which may impose additional requirements. In California, for example, all employers, no matter how small, must provide reasonable lactation breaks to nursing mothers. California law doesn’t limit this right to the first year after a baby is born: An employee may take lactation breaks for as long as she is breastfeeding her child. In New York, all employers must provide reasonable lactation breaks to nursing mothers for up to three years after birth.

You can find descriptions, citations, and links to the breastfeeding and lactation laws of each state, including laws requiring employers to provide lactation breaks, at the Breastfeeding State Laws page of the National Conference of State Legislatures.

Questions for Your Attorney

  • Does my state give me any protections in addition to those granted by the ACA?
  • How do I know how much time and how many breaks are "reasonable" to pump breast milk during the workday?
  • Can I use my paid breaks to pump breast milk?

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