When the PUMP Act was signed into law in late 2022, after I did my happy dance, I made sure to share the wonderful news with several of my friends. One of my pals shared my enthusiasm and then urged that advocates make sure that moms actually know about their rights. Years ago, when she worked in a daycare, she noticed that so many of the moms she interacted with didn’t realize that they had any lactation rights (which were less than, but still existent). That’s what guest blogger Donna Walls’s mission is this week, to amplify the progress we’re making around lactation support in the workplace. Please enjoy and pass along her piece: Lactation Support in the Workplace: New and Improved Protections.
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There have been great victories for lactation advocates and families but, unfortunately, we are not hearing much about them outside of the “inner circle”. It’s time we start talking about these important legislative victories!
I am privileged to be a part of the United States Breastfeeding Committee’s (USBC) Workplace Support Constellation. The Workplace Support Constellation works to address the barriers to breastfeeding for lactating workers, with a specific focus on reducing disparities and inequities. The Constellation works together to advance the following priority strategies:
- Increase understanding of employer responsibilities and employee rights under federal and state law through an education campaign emphasizing existing implementation resources.
- Identify gaps in the current laws and work to expand protections for all employees. [Retrieved from: https://www.usbreastfeeding.org/ws-constellation.html]
We work to support mothers returning to work or school in any way needed; practically, legally and educationally. While there is always work to be done, I am happy to report that much progress has been made.
First, let’s impart a little history of lactation support in the workplace. In 2010, the US Department of Labor Wage and Hour Division amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide breastfeeding mothers with reasonable break time and a place (other than a bathroom) to express breast milk. This amendment became effective on March 23, 2010, when the Patient Protection and Affordable Care Act (ACA) was signed into law.
Over a decade later, the PUMP (Providing Urgent Maternal Protections) Act for Nursing Mothers was passed providing expanded protections, including legal recourse for those who have been denied these rights by their employer.
Watch the PUMP Act Briefing here.
Though the updated legislation filled many gaps, unfortunately, certain employees of airlines, railroads, and motorcoach carriers are exempt from nursing employee protections under the FLSA. However, employees who are not covered, may be entitled to break and/or space protections under State or local laws.
More good news came in the summer of 2023 when the Pregnant Workers Fairness Act (PWFA), through The Equal Employment Opportunity Commission, went into effect.
According to the government website, “Generally, PWFA requires an employer to provide a ‘reasonable accommodation’ to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an ‘undue hardship’. Reasonable accommodations may include extra breaks, flexible scheduling, being able to sit down or drink water, uniform changes, taking time off work or limiting exposure to hazardous chemicals.
The PWFA applies to all businesses private and public sector, including state and local governments federal agencies with more than 15 employees.
Protections also include accommodations related to infertility, miscarriage, pregnancy loss, and abortion, childbirth and recovery, postpartum depression and lactation and conditions like mastitis, low milk supply and plugged ducts.
Employers must:
- make a reasonable accommodation for the known limitations of an employee
- not deny a job or employment opportunities to a qualified employee based on the person’s need for a reasonable accommodation
- not require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working
- not punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation
- not coerce individuals who are exercising their rights or helping others exercise their rights under PWFA
Check out https://pregnantatwork.org/ for more detailed information.
If employees are being denied these accommodations, they can file their complaints through the Equal Employment Opportunity Commission. Click here for more. A Better Balance also offers a free and confidential legal helpline to help individuals understand their rights in the workplace. The helpline number is 1-833-NEED-ABB (1-833-633-3222) or there is an online form available.
You can also check out https://pregnantatwork.org/ for more detailed information.
One of the most recent victories are the new protections finalized under Title IX.
Title IX prohibits discrimination on the basis of sex and pregnancy-related conditions and parental status. This includes sexual orientation of the parent, biological or adoptive parents, foster or stepparent, legal guardian or custodial parent, actively seeking legal guardianship, custody or visitation, adoption of a child under 18 years of age or a disabled person over 18 who is not capable of self-care.
Protections have expanded to include students, trainees and employees of schools K-12,
college, university, vocational school, other academic institution or government-funded training
programs. Exemptions may be granted to religious institutions if not discriminating violates their religious beliefs. More information on exemptions can be found here.
For clarification and help with implementing these protections, the Workplace Lactation Accommodations: Employer Toolkit will be published soon through the USBC Workplace Support Constellation.
Until then, here is a brief summation of the protections:
- What is a “lactation space”? These may look very different, but all spaces must be a clean, non-bathroom space free from viewing, preferably with a lock or security measure. The space may be multi-use with the provision that the mother expressing her milk is prioritized. Each designated lactation space will contain, at minimum, a chair, table or other flat surface for holding a pump, and electrical outlets (not required but strongly recommended). A sink or access to water for hand and equipment cleaning is also strongly recommended. A general guideline for establishing the number of lactation spaces needed is about six spaces per 1,000 female employees. Examples may be an exam room, conference room, office or clean, uncluttered storage room or closet.
- What is a “lactation break”? Time will be provided for employees to express milk as often as needed (as determined by the employee) during the workday and will
Include time to set up, express milk and clean up. Employees are expected to inform their supervisor of the expected schedule as soon as possible, and it is the responsibility of the supervisor to obtain any required coverage. Employees’ needs may change over time and they may request changes in this schedule as needed. Salaried employees will not find changes in their pay as a result of pumping breaks, but hourly employees’ lactation breaks will be unpaid except when they choose to work while pumping; are pumping during a break that is normally paid; are using paid time off. A general guideline is that the employee may need about 20 to 30 minutes, every two to three hours but this may vary depending on the child’s age and individual needs.
- What about milk storage? The law requires a place to store milk safely but does not
Make any specific considerations. Human milk is not considered a safety concern and can be stored in any employer provided refrigerator or cold storage. All milk should bel labeled with the employee’s name and date expressed. The Center for Disease Control and Prevention provides milk storage guidelines here.
Much work has been done, and we are now presented with the opportunity for all lactation advocates to help spread the word. Provide this information in your breastfeeding classes, share on all of your social media sites and talk with pregnant women whenever possible, including local childbirth education classes and postpartum support groups.
Check with the Human Resources Department in your workplace to make sure they are aware and can implement the needed protections. Find parallel advocacy fields– Adolescent Nutrition, Climate Change, Digital Health, Early Marriage/Pregnancies, Emergency Settings/Humanitarian Crises, Economics, Newborn and Child Health, Pediatrics, Sexual and Reproductive Health, Social and Behavioral Change, Women’s Health– lactation and breastfeeding are almost always relevant somehow! Let’s celebrate these major strides.
Other relevant resources
Pregnant Scholar toolkit on student legal protections
Sample outreach letter from lactation support orgs to local schools/colleges: https://thepregnantscholar.org/wp-content/uploads/Lactation-Support-Org-Letter.docx
WorkLife Law’s Free Legal Helpline for pregnant, postpartum and lactating students and workers: (415)703-8276 and hotline@worklifelaw.org
HHS Employer guide to supporting nursing parents at work
Breastfeed LA accommodation ideas in different spaces, guides for employees/students and employers
University of Northern Colorado Campus Lactation Toolkit (note, contains outdated legal information)
Title IX BreastfeedLA website with reports on lactation and education
Lactation accommodation while incarcerated