Returning to work as a new mother is always a hard transition. One of the greatest challenges is going back to work when you are still breastfeeding. Asking for the time and space to pump can be very intimidating. Understanding your rights in regard to pumping in the workplace can make asking your employer to accommodate your needs a lot easier.
Are employers required to let new mothers pump?
There are several laws that require employers to provide space and time for lactation, or using a pump. This is referred to as lactation accommodation.
In 2010, the Affordable Care Act amended section 7 of the Fair Labor Standards Act (FLSA), so that employers are required to a provide nursing mothers with reasonable break time, and a place other than a bathroom so they can express milk. While this is a big improvement in the workplace for nursing mothers, the law’s reach and scope are limited. An employer is not covered under the FLSA if they have fewer than 50 employees, and providing lactation accommodation would cause an undue hardship. California law goes beyond federal law to apply to all employers, no matter their size. California law requires that every employer provide a reasonable amount of break time to accommodate an employee’s desire to express breast milk (Labor Code Sections 1030-1033). Similarly to the federal law, California law requires the employer make reasonable efforts to provide a private room or location, besides a bathroom, for this purpose.
What is reasonable?
Both California and federal law require reasonable break time, and California law requires reasonable efforts to provide a private space. But what is considered reasonable?
The Department of Labor has set out some factors that must be considered in determining what constitutes “reasonable” time: the time it takes to walk to and from the lactation space and any wait to use the space; whether the employee has to retrieve her pump and/or supplies from another location; whether the employee will need to set up her own pump, or if a pump is provided; the efficiency of the pump used to express milk; whether there is a sink nearby for the employee to wash her hands and clean the pump attachments, or what additional steps she will need to take to maintain the cleanliness of the pump attachments; and the time it takes for the employee to store the milk. The Department of Labor estimates that normally a 15 to 20 minute break about two or three times during an eight-hour shift is reasonable. If your needs go beyond this amount of break time, providing your employer with a note from your Doctor which states how much time is needed will help to establish what is reasonable in your situation.
Under the FLSA, employers must provide a place shielded from view of others. It must be free from intrusion from coworkers and the public, and it may not be a bathroom. Under California’s Labor Code, employers must make reasonable efforts to provide the employee with a room, or other private location, to express breast milk that is in close proximity to the employee’s work area. The area may not be a toilet stall. The first employer to be issued a citation in California received the citation because the room provided was not considered to be private enough.
Can my employer discriminate against me for requesting lactation accommodation?
In 2012, the Fair Employment and Housing Act (FEHA), was amended to include breastfeeding and medical conditions related to breastfeeding within the definition of sex discrimination. An employer cannot discriminate, retaliate, or takes negative action against a lactating mother, which is motivated by her medical condition related to breastfeeding.
What if my employer refuses to provide reasonable lactation breaks?
If your employer refuses to provide reasonable breaks or a private space you have two choices: bring a lawsuit, or report your employer’s actions to the Labor Commissioner. The Labor Commissioner has encouraged reporting since it is really the only way enforcement can occur. However, the Labor Commissioner may not act on a complaint, or act quickly enough to enforce your right to lactation accommodation when you need it. In some cases a lawsuit may be the only way to get your employer’s attention.