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 nonexempt (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.
In other words, it's not very straightforward to determine whether you’re protected by two separate, overlapping federal laws that apply to breastfeeding moms. To complicate things further, as of this writing, the Affordable Care Act is being debated by the U.S. Congress under the new Trump Presidential administration and may be repealed in whole or part. (This Change.org petition may interest some of you who want to ensure that moms are still entitled to the Reasonable Breaktime for Nursing Mothers provision.)
Who qualifies for federal protection?
In general, if your employer is required to pay you overtime when you work more than 40 hours per week, then your right to pump breastmilk at work is protected by fedeeral law. 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 website. Examples of workers who are protected with the right to pump breast-milk at work include retail workers, factory workers, restaurant workers, call-center workers and agricultural workers. Women who are administrative professionals or executives are not covered, however.
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.
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.
What does your employer have to do?
Even if you are covered and protected under the federal breastfeeding laws, you should be clear about what your employer must do. First, although you have the right to pump in a non-bathroom facility, that doesn't mean that any specific, permanent pumping facility needs to be set up. A temporary, private place is acceptable which means that employers can provide an empty offices or other room on-site into a lactation site.
In terms of time, your employer must offer a "reasonable break time" to pump milk. This time also includes time for you to retrieve and set up your breast pump. However, this break time does not have to be paid, and this is especially true if other break-time offered to employees is unpaid.
While the general guildelines seem clear, there are many cases that may seem to be borderline or fall into grey areas. For example, if your employer asks you to use a utility closet and employees have access to it, does this count as reasonable accommodation for pumping breastmilk? Practically speaking, if you are pumping in a facility without a locked door, you may have to create your own sign asking people to knock before use.
Also, some women need more time than others to pump milk as their milk supply, flow and breasts respond differently to pumping. While some women can finish pumping in under 15 minutes, others may need over 30 minutes for set-up, pumping and cleaning. Also, some women may need to pump more frequently than every 3 hours.
The variations on time and facilities for women who pump in the workplace can be wide ranging. The law will not specify all situations that are legal versus illegal so it's best to consider the spirit of the law and speak to your employer, manager or HR department if you feel that you are not getting adequate time or a sufficiently clean and private place to pump breastmilk.
Here are other laws that protect breastfeeding moms.
If the federal law doesn’t cover you, some state laws also provide some additional protection. That is, unless you work in Kansas, Idaho, Georgia, North Carolina, or Alabama. The Department of Labor provides a helpful map of the states where additional protections may cover a new mother’s right to work.
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 that are not as easy to bring to your employer or HR department's attention since they require referring to case law. In other words, it's tougher to make your case.
Since we're not attorneys, we urge you to contact either the U.S. Department of Labor's Wage and Hour Division for advice or seek out a local employment attorney if you suspect your right to pump breastmilk are being violated at work.