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Pregnancy Week 50: How U.S. Law Impacts New Moms At Work
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Do you have the legal right to pump breastmilk at work? It’s hard to believe, but the answer to this question is only “maybe.” 

Under a provision called “Break Time for Nursing Mothers” in the 2010 Affordable Care Act, a federal law popularly known as “Obamacare,” most hourly and certain non-exempt (read: salaried) employees working for an employer with at least 50 employees and who are covered by another U.S. law called the Fair Labor Standards Act (the FLSA) are entitled to “reasonable” breaks to pump breastmilk in a private facility that is not a bathroom.

That was a mouthful. But yes, you read that correctly.

On top of your new job as a mother, it’s crazy to realize that you have to try to figure out whether you’re protected by two separate yet overlapping federal laws that apply to breastfeeding moms

Figuring out non-exempt and exempt.

Who’s a non-exempt employee? In general, if your employer is required to pay you overtime when you work more than 40 hours per week, then you are. This is true even if you never actually work part-time or are paid overtime. The definition is about what class of employees you fall under.

If you’re a non-exempt employee, then you’re on your way to being covered under the federal breastfeeding law. However, if you work for a smaller employer with fewer than 50 employees, they may be able to avoid allowing you to pump breastmilk at work if they can prove they would be subject to “undue hardship.”

Finally, your job must be covered by the FLSA. That law covers you if you are employed by a hospital, school, government agency or business that provides medical or nursing care. Also, if your work involves “interstate commerce,” you are covered by the FLSA. 

Since it may be difficult to interpret these requirements, the United States Breastfeeding Committee provides some helpful examples of who’s covered and who’s not on their site:

 

COVERED

NOT COVERED

Retail workers

Administrative professionals

Factory workers

Executive professionals

Restaurant workers

 

Call center workers

 

Agricultural workers

 


At any rate, we really hope you don’t have to read the text of these laws because that probably means you’re dueling with your company about whether you are entitled to pump breastmilk. Even worse, if you’re not covered by FLSA, you’ll have to investigate whether you’re covered by state laws or court cases.

All of this can feel downright offensive given how difficult pumping is and how much you’ve got on your plate as a new mom. Oh, and the real kicker? Even if you’re covered by law to pump at work, that time you’re pumping does not have to be paid if your employer does not offer paid breaks in general.

Are you wondering how this can be true when so many employers seem to have on-site lactation rooms and employ working moms? Well, many employers and companies are simply going above and beyond what’s legally required of them. Either they believe it’s the right thing to do or it makes good business sense to support their female employees who choose to nurse. 

Just as there is no federally mandated paid maternity or paternity leave, and unpaid leave is only provided at the federal level to employees of firms that employ more than 50 people, there are many breastfeeding moms left without legal protections. Because federal legislation protects most hourly workers, it’s actually white collar workers who are left most unprotected. Crazy, right? 

If the federal law doesn’t cover you, some state laws also provide additional protection. In some states the reach of the anti-discrimination statutes also may cover nursing mothers through cases decided in court. For example, some judges have found that an employer cannot grant a man a smoking break and not offer a woman a pumping break. However, these are indirect protections are not exactly the same — or as good — as just flat-out knowing that you’ve got a right to pump breastmilk in a clean, private place.

Additional resources:

Fact Sheet #73: Break Time for Nursing Mothers under the FLSA

Section 7(r) of the Fair Labor Standards Act – Break Time for Nursing Mothers Provision

Fairness for Breastfeeding Mothers Act

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