Mothers Have Legal Right to Express Milk at Work

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April 20, 2010

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law. This Act contains a provision that requires employers to furnish “reasonable” breaks to mothers so they can express milk for infants under one year old. The law also requires covered employers to furnish a private space that is shielded from view, other than a restroom, for mothers to express milk.

Employers with less than fifty (50) employees do not have to comply with the new provisions if they can establish that satisfying them would impose an “undue hardship.” “Undue hardship” is determined by examining whether the employer will be caused significant difficulty or expense when considered in relation to the employer’s size, financial resources, nature, or structure of the employer’s business. Meeting these criteria will be very difficult.

The new law states that the time off to express milk can be unpaid. However, a state’s law may require that an employee at work be paid for the time taken to express milk. For example, in Wisconsin, an employer who provides employees with less than 30 minutes for a work break must pay the employee for the break time. If the work break is 30 minutes or more, the break need not be paid. Thus, the law requires Wisconsin employers to pay employees who are provided or take less than 30 minutes to express milk.

On March 25, 2010, the State of Wisconsin joined the federal government regarding an employee’s right to express milk. A new Wisconsin law states that a mother may express milk for her child in any public or private location where the mother and child are authorized to be. When in such locations, no person may prohibit a mother from breastfeeding her child. Although Wisconsin’s law grants mothers the right to breastfeed in private or public locations, it does not address pay or no pay if this occurs at work.

New posters for the workplace regarding the above provisions are not yet prepared. Thus, employers should keep the new provisions in mind. It would be good practice to incorporate them into personnel policies, such as Family and Medical Leave Act policies, so an inadvertent violation can be avoided.

If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group, the Local Governments Focus Team, or the School Districts Focus Team of Ruder Ware.

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