Tuesday, March 13, 2018

New Jersey Becomes the Latest State to Enact a Breastfeeding Protection Law

New Jersey joined the growing list of states protecting breastfeeding in the workplace earlier this year when it amended its Law against Discrimination to prohibit discrimination against women who breastfeed or express milk during breaks. The law prohibits an employer from refusing to let a nursing mother breastfeed or express milk during work, and requires employers to set aside a place for the mother to do so in privacy. This place cannot be a bathroom stall, and must be located close to the workplace.

Employers also have to provide nursing mothers with breaks throughout the day to breastfeed or express milk, although employers do not have to pay the mothers during these breaks unless the mothers are already eligible to receive paid breaks. Also, if providing the breaks or a location to breastfeed would impose an “undue hardship on business operations,” then the employer can be exempted from doing so.

The Affordable Care Act (aka Obamacare) amended the Fair Labor Standards Act so that it prohibited discrimination against breastfeeding mothers in the workplace. However, those amendments only applied to employers with more than 50 employees, and also did not require employers to set aside a place for mothers to breastfeed and breaks for them to do so. A few courts have also held that breastfeeding is protected under Title VII of the Civil Rights Act of 1964.

New Jersey becomes the 18th state to enact protections for breastfeeding mothers, joining New York, Colorado, Oregon, and Minnesota, among others. California is considering a law which would provide even more protections than New Jersey’s, requiring employers to provide employees with lactation rooms that meet certain criteria like providing a surface to place a breast pump and other personal belongings, a place to sit, and access to electricity, a sink with running water, and refrigerator. Wisconsin, Texas, Pennsylvania, and Maryland are also considering breastfeeding protection laws.

Illinois is among the states that has passed a breastfeeding protection law. The Nursing Mothers in the Workplace Act (820 ILCS 260/1, et seq) is similar to New Jersey’s law, requiring employers with more than five employees to provide mothers with unpaid break time to breastfeed or express milk. It requires employers to make reasonable efforts to provide a room or other location in the workplace where a mother can breastfeed or express milk in private, and this place cannot be a toilet stall. The law does not require employers to provide dedicated lactation rooms, but an area for breastfeeding must be shielded from view and free from intrusions.

Employers should draft a breastfeeding policy and make it known to their employees. It may be worth discussing such a policy with a lawyer. Feel free to contact me to do this.