Pumping & Breastfeeding in the Workplace Discrimination

The American Academy of Pediatrics (AAP) recommends that mothers breastfeed for at least 24 months, and thereafter for as long as mother and baby desire. Yet many women with children age three and younger work full-time outside of the home. Many of these mothers return to full-time work within three months after giving birth. As a result, working outside the home correlates to a shorter duration of breastfeeding. Knowing your rights as a breastfeeding employee can help you plan a successful transition back to work and enable you to continue breastfeeding your baby.

It is against the law for employers to discriminate against employees for pumping or breastfeeding in the workplace. From our offices in Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, and Philadelphia, PA , McOmber McOmber & Luber, P.C. represents both employees and employers throughout the state in a wide range of employment discrimination matters, including pumping & breastfeeding discrimination. Our attorneys will discuss your situation with you and provide you with a clear and candid evaluation of any potential claims, as well as all legal options available to you.

What Are Your Breastfeeding Rights At Work?

The Fair Labor Standards Act (FLSA) provides certain protections for nursing mothers in the workplace. Under this law, employers are required to provide a clean, private space (not a bathroom) for women to express breast milk and to allow reasonable break times for this purpose. These protections extend up to one year after the baby’s birth.

Protections Against Pumping & Breastfeeding Discrimination in the Workplace in New Jersey

Employees in New Jersey are protected from pregnancy-related discrimination under the New Jersey Law Against Discrimination (NJLAD). Moreover, under this law, New Jersey employers are obligated to provide reasonable accommodations for women to breastfeed or express breast milk during the workday. New Jersey law prohibits discrimination or harassment on the basis of pumping/breastfeeding. These rights may also be enforced on the federal level via gender discrimination, pregnancy discrimination, and retaliation claims.

Several federal laws protect pregnant and breastfeeding employees from discrimination; these include:

• The Pregnancy Discrimination Act (PDA): This act, an amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination based on pregnancy, childbirth, or related medical conditions. Employers cannot refuse to hire, fire, or otherwise discriminate against a woman because she is pregnant or has a pregnancy-related condition, such as breastfeeding.
• The Americans with Disabilities Act (ADA): Pregnancy-related medical conditions may be considered disabilities under the ADA, requiring employers to provide reasonable accommodations to affected employees.
• The Family and Medical Leave Act (FMLA): Eligible employees are entitled to 12 weeks of unpaid, job-protected leave for the birth of a child or for a serious health condition (which can include pregnancy.)
• The Fair Labor Standards Act (FLSA): Under the FLSA, employers are required to provide reasonable break times and a private space for nursing mothers to express breast milk during the workday for up to one year after the child’s birth.
• The Patient Protection and Affordable Care Act (ACA): This Act amends the FLSA to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth.
• The Pregnant Workers Fairness Act: Effective from June 27, 2023, this act mandates that employers across the nation provide suitable adjustments for employees experiencing restrictions due to pregnancy or related conditions, including childbirth and lactation/breastfeeding.

What is the PUMP Act?

Under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, employers are obliged to provide necessary accommodations for breastfeeding employees. These provisions include allowing reasonable break time for an employee to express breast milk, as well as providing a private, non-bathroom space shielded from view and free from intrusion for pumping purposes. The accommodations, in place for one year following the child’s birth, are not restricted to specific times but should be available whenever the employee needs them. By encompassing these requirements, the PUMP Act strives to create a supportive, respectful, and adaptable work environment for nursing mothers.

The Federal “Break Time For Nursing Mothers” Law

When the Affordable Care Act was signed into law on March 23, 2010, breastfeeding mothers gained federal protection in the workplace. This law requires employers to provide reasonable break time for employees to express breast milk for their nursing children for one year after the child’s birth, whenever the employee has a need to express milk. Employers are not required to compensate employees for these breaks. However, if your employer already offers paid breaks and you use these breaks to pump, you should be compensated for your time as usual. Employers must also provide a place (other than a bathroom) that is completely shielded from view where the employee can express milk.

To maintain an ongoing, sufficient supply of milk for your child, you need to pump as often as your baby would otherwise nurse. The law recognizes that the length of time needed to pump and the required frequency will be different for every mother. Employers must provide space and time each time you need it. To determine how much time you need, consider adding the amount of time it takes to gather pumping supplies, get to the pumping area, clean and store your supplies (including refrigeration), and return to your work area.

Does Pregnancy/Breastfeeding Affect Productivity?

While pregnancy and breastfeeding might necessitate certain accommodations at work, they do not inherently affect a woman’s productivity or ability to perform her job duties. In fact, when employers provide supportive environments and reasonable accommodations for pregnant and breastfeeding employees, it can lead to increased employee retention, lower turnover rates, and improved morale, contributing positively to overall productivity.

What Are Reasonable Accommodations for Nursing Mothers?

Employers are mandated by law to provide reasonable accommodations for breastfeeding employees. This includes providing a clean, private, and secure space that is not a bathroom where nursing mothers can pump breast milk. Employers also must provide reasonable breaks throughout the day for this purpose.

These protections extend for one year following the baby’s birth. Furthermore, employers cannot discriminate or retaliate against employees for exercising these rights. By understanding and advocating for these accommodations, breastfeeding employees can navigate their workplace responsibilities while continuing to provide for their nursing child.

Employers Benefit From Allowing Employees To Pump At Work

Notwithstanding any conflicting provisions of the law, women are entitled to breastfeed their children in any location in a federal building or on federal property if she and her child are authorized to be present at the location. The same applies to nursing mothers in New Jersey.

Several studies have found that supporting lactation at work results in improved productivity, staff loyalty, enhanced public image of the employer, decreased absenteeism, lower healthcare costs, and reduced employee turnover.

Employer Exemptions from Breastfeeding in the Workplace Requirements

All employers, regardless of the number of employees they employ, must comply with this law. However, if a breastfeeding mother employed by a company with less than fifty employees complains because she is denied accommodations, the employer can apply to the Department of Labor for an undue hardship exemption. To be excused from the requirements of the law, the employer must prove that providing accommodations would cause significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. Employers who apply for an exemption must comply with the law unless and until the Department of Labor grants an exemption. The “Break Time for Nursing Mothers” law applies to all employees paid on an hourly basis who are covered by the Fair Labor Standards Act.

Workplace Policies and Pregnancy

Employers should have clear policies that protect the rights of pregnant and breastfeeding employees. This can include provisions for maternity leave, accommodations for pregnancy-related conditions, and protections for nursing mothers. These policies should be communicated clearly to all employees and enforced consistently to ensure a fair and inclusive workplace.

What is Considered Discrimination Against Pumping/Breastfeeding in the Workplace?

Workplace discrimination regarding pumping/breastfeeding at work can include a wide range of behaviors or mistreatment between an employee and their employer, co-workers, or clients, including:

• Treating breastfeeding employees differently.
• Failing to promote employees who breastfeed at work.
• Violation of the Family Medical Leave Act (FMLA), New Jersey Law Against Discrimination (NJLAD) or US Pregnancy Discrimination Act (PDA).
• Refusing to hire a new mother on the basis that they may require breastfeeding in the workplace.
• Subjecting new mothers to increased scrutiny, criticism, and harassment, or otherwise making the workplace uncomfortable.
• Verbal or physical abuse of pumping/breastfeeding employees.
• Harassment of a pumping or breastfeeding employee, which may constitute a hostile work environment or overlap with sexual harassment in the workplace.
• Changing positions or responsibilities or demoting a breastfeeding employee based on the assumption that they cannot handle her usual tasks.
• Terminating or laying off an employee who has recently had a child.
• Forcing a pumping/breastfeeding employee to resign.

What Should I Do If I Am Facing Pumping/Breastfeeding Discrimination in New Jersey?

New mothers should be treated with dignity and respect in their place of work, and this includes being able to pump/breastfeed their child. If you have experienced a hostile work environment or suffered breastfeeding discrimination in the workplace, call our Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, or Philadelphia, PA  office or contact us online today for a free consultation. We will discuss your rights and options, which may include internal complaints or a lawsuit, and help you every step of the way in seeking justice for unlawful workplace discrimination.