Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies. After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.
For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth. See 29 C.F.R. 207(r). This law is also known as the “Break Time for Nursing Mothers Law.” Employers are also required to provide a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public. All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.
In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA). It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job. Id.
In passing the amendment to LAD to include nursing mothers, New Jersey legislators recognized the significant benefits of breastfeeding, and sought to protect women from being harassed, fired or restricted from expressing milk. Breastfeeding mothers have the right to pump in a private, suitable location during the workday, and must not be relegated to a toilet stall. Restrooms are not always sanitary, they do not have a comfortable location to sit and allow for let down and milk flow, and there is often no access to an electrical outlet to plug in a breast pump.
“Reasonable break time” is undefined by the statute and leaves open the question of how long is too long to express milk or pump? Often the process of retrieving the pump, relocating to the designated lactation area, plugging in and setting up, allowing for letdown, and then drawing the milk can take longer than 15 minutes, and can sometimes take as long as a half hour. The federal law recognizes that the amount of time it takes to express milk may differ for every mother, and the frequency of breaks will vary.
If you are a breastfeeding mother going back to work after parental leave, you should talk to your supervisor in advance about an appropriate location to either breastfeed or pump, the anticipated frequency and duration of breaks, and an appropriate location to store milk.
If you have been wrongfully terminated or retaliated against for being a breastfeeding mother, it is time to contact us. Call the attorneys at Mashel Law, LLC at (732) 536-6161 or fill out the contact form on this page for immediate help.