October 21 Tip of the Week

“Reminder Regarding Lactation Rights”

With many states adopting new paid family leave laws that provide employees time off after the birth of a child or the placement of a child for adoption, employers focus on their leave benefits and often overlook what must happen when the employee returns to work.  For those employees who are breastfeeding their children, states and the federal government have enacted lactation laws that require employers to accommodate a returning mother’s need to pump at work. 

The federal PUMP Act, a part of the Fair Labor Standards Act signed into law on December 29, 2022, requires employers to provide reasonable break time and a place, other than a bathroom, that is shielded from view to express breast milk while at work. This right is available for up to one year after the child’s birth. Under federal law, break time spent for this purpose is not required to be paid. 

While the federal law provides a basic right to unpaid breaks for the purposes of expressing breast milk at work, some states have enacted laws that provide even greater protections and rights for women who must pump at work.  Over half the states, including the District of Columbia, provide similar protections to working mothers – the right to use their breaks at work to express breast milk.  These states, however, do not include any provisions regarding whether the leave should be paid or unpaid and, as a result, these pumping breaks are treated like any other break when an employee is relieved of all duty.  In other words, the leaves are unpaid.  Some state laws go farther and echo the federal requirement that an employer must provide a private place that is not a bathroom where the employee can express breast milk.  Still other states require the employer to provide extended breaks to employees beyond their regular work breaks for the purpose of expressing breast mile. 

Some states also require employers to provide paid breaks to employees for the purpose of expressing breast milk.  For example, beginning on June 19, 2024, Labor Law Section 206-c provides all employees with the right to paid break time to express breast milk in the workplace regardless of the size of their employer or the industry they work in. Employers are required to tell employees about their rights regarding breast milk expression by providing them the NYSDOL Policy on the Rights of Employees to Express Breast Milk in the Workplace when they start a new job and annually thereafter. The New York law does not contain any limitation on the amount of pumping breaks an employee may take.  Employers in New York must allow employees to take breaks as often as they reasonably need to express breast milk; the law states that each employee is different, and employers must accommodate employees based on each individual’s needs. 

Employers need to be aware that their obligations to new parents, particularly lactating mothers, do not end when the employee’s parental leave ends.  Employers must continue to ensure that they are meeting all of their obligations under the law when a lactating mother returns to work.  myHRcounsel can assist you in navigating these obligations by keeping you up to date on the law and its requirements and helping you to manage situations where the employee’s return to work presents difficult questions.