As of 2010, the Affordable Care Act amended the Fair Labor Standards Act (FLSA) to include requirements that employers covered by the FLSA accommodate non-exempt employees. The statute requires:
1) Reasonable break time for an employee to express breast milk for one year after the child’s birth each time the employee needs to express milk; and
2) A place, other than a bathroom, shielded from view and free from intrusion from coworkers and the public to do so.
Businesses with fewer than 50 employees may be eligible for an exemption if the requirement inflicts undue hardship. Hardship is determined by examining the expense of compliance in comparison to the size, financial resources, nature, or structure of the business. The law does not require that a separate space be dedicated for breastfeeding mothers’ use, only that the space is available when needed. For office based companies, compliance may be as simple as placing a lock on an already existing room.
Louisiana does not currently have a state law on expressing milk in the workplace. However, Louisiana does have a statute generally prohibiting discriminatory actions against breastfeeding mothers in public accommodations. This statute would presumably provide some protection for mothers in the workplace if their workplace is also a “public accommodation, resort or amusement”.
Federal Courts have disagreed as to whether or not breastfeeding is a condition related to pregnancy which would mean that nursing mothers are further protected under sex discrimination laws. The Federal Fifth Circuit held in EEOC v. Houston Funding II, Ltd., that discriminating against a woman who is lactating or expressing milk is a violation of Title VII and the Pregnancy Discrimination Act. 717 F.3d 425, 429 (5th Cir. 2013).
Employers should have a plan in place, as discussing the topic can often be difficult or embarrassing for the employee, especially if the employee has a male supervisor. Creative solutions are needed for employees that do not have offices, such as those in the transportation, retail, or food service industries. Taking the time to develop a plan can both prevent litigation and increase employee loyalty.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.