Working mothers of newborns have many issues to deal with, including the disruption of their job and lost pay that may come with taking a maternity leave. As long as there have been babies and women, babies have been fed breast milk. The development of baby formula gave parents an option not to use breast milk. Today many working mothers believe that breast milk is the right choice for their child, though that requires physically expressing milk at work and storing it for later use.

In 2010 the Affordable Care Act (known as Obamacare) made many changes to our health insurance system (some of which have been repealed) but it also contained language to help some working women who pump express milk. Under the law,

• Employers need to provide “reasonable break time” to breastfeeding employees to express breast milk until the child is one year old.
• Employers need to provide a private place, other than a bathroom, to do this.
• The employee need not be paid for the time spent expressing breast milk.
• Employees paid on an hourly basis and not exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA) are entitled to breaks to express milk. Whether or not you are considered an exempt, normally salaried employee under the FLSA depends on your particular situation.
• Employers with less than fifty employees are not subject to these requirements if they “would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business.”
• The law didn’t prevent state law that provides greater protections to employees. In New, Jersey there are similar protections for employees whose employer has fewer than fifty employees.

Lactating female employees may have some legal protections under the federal law outlawing many discriminatory employment practices, Title VII, as amended by the Pregnancy Discrimination Act. According to the federal Equal Employment Opportunity Commission,

• Lactation, or the postpartum production of milk, is a physiological process triggered by hormones. As a pregnancy related medical condition, discrimination against a lactating employee may raise an inference the law’s been violated.
• A nursing mother generally will need to breastfeed or express breast milk using a pump two or three times over an eight hour workday. An employee must be able to address her lactation-related needs the same as other workers addressing similarly limiting medical conditions.
• Because only women lactate, if an employer singles out lactation or breastfeeding for less favorable treatment, that could be seen as illegal discrimination. For example, if an employer allows workers freedom to do what they wish on their own time during a break, said employer can’t prohibit female employees from expressing breast milk during breaks.

If you need to express breast milk during your work day, here are some suggestions:

• Inform your boss or direct supervisor (and if you feel the need, inform co-workers who rely on you) that you will be pumping a given number of times each day and you need a designated place to do so.
• You can’t be legally forced to use a bathroom stall for pumping. If there is privacy you could use a break room, conference room, or your own office.  If the door can’t be locked a sign on the door requesting privacy would be a good idea.
• Depending on your duties and where you express breast milk, you may be to get some work done at the same time. That may not be possible or practical for others. Though generally these types of breaks need not be paid, if the employer pays others while they’re on other types of breaks, you may have a valid claim to be paid for your time (especially if you’re performing work at the same time).

If you have questions or concerns about your ability to express breast milk at work or possible sex discrimination because of it, contact the employment attorneys for workers at Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online to set up a near-term reduced fee initial consultation at our Central Jersey location in Kingston.  We will listen to your facts, explain the law, and recommend your best pathways to monetary and social justice.  Call today. You will be glad you did.