What Employers Need to Know About Breastfeeding at Work

November 5, 2019

The Fair Labor Standards Act (FLSA) requires certain employers to provide basic accommodations—including break time and a designated space other than a bathroom—for breastfeeding employees to pump (or express) breast milk at work. Additionally, Wisconsin law allows women to freely and openly breastfeed their children at any business location where they are otherwise authorized to be. Understanding the laws and implementing a company lactation policy will promote employee retention and satisfaction and prevent liability.

When Does the Law Apply?

All employers with 50 or more employees must comply with the FLSA’s break-time requirements. Businesses with fewer than 50 employees are exempt if compliance would impose an undue hardship on the employer, which is determined by looking at the difficulty or expense versus the company’s size, financial resources, nature, and structure. All employees who work for the employer, regardless of worksite, are counted when determining whether the exemption applies.

How Much Break Time is Allowable?

At a minimum, you must provide “a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The frequency and duration of the pumping breaks vary among women, so flexibility is important. Most women will need two or three breaks during a standard eight-hour shift. In addition to the time spent expressing the milk (typically 15 to 20 minutes per session), they may need time for setting up, cleaning up, and storing the milk.
Women may choose to use their standard breaks and meal periods to pump breast milk, but they aren’t required to do so. You aren’t required to pay employees during pumping breaks. If an employee is using break time that is already paid time, however, you must compensate her in the same way as you pay other employees for the time. If she needs extra break time to express milk, it can be unpaid. In addition, she must be completely relieved from duty during the break, or else the time must be compensated as work time.

Is a Designated Space Necessary?

To accommodate employees who need to express breast milk, the FLSA requires employers to provide a place, other than a bathroom, that’s shielded from view and free from intrusion by coworkers and the public. That often means putting a lock on the door or setting up a screen or curtain and adding appropriate signage to dissuade others from entering. For outdoor work-places, a pop-up tent or portable shell may be necessary.

Bathrooms are not acceptable spaces to accommodate pumping employees under the law. Bathrooms are places to eliminate waste and wash your hands afterward to prevent the spread of germs and disease. Breast milk is food and should be handled in the same sanitary manner as other food. No one would consider preparing food in a bathroom.

The space offered to employees doesn’t have to be a permanent, dedicated lactation room. Flexible and temporary options, such as borrowing a coworker’s office, are sufficient. The space only needs to be a private, designated area when the employee needs it to express breast milk. The space can be converted to other purposes when she isn’t using it. If your business has limited space or options, you may want to consider partnering with a neighboring business to share lactation space.

A designated, private, and comfortable lactation space is necessary because mothers should be seated and not stressed to promote the best milk flow. Al-though a baby can be nursed relatively discreetly using a cover garment and requiring minimal cleanup, using a breast pump to express milk is a much different experience with more steps involved. To use the pump, a woman must remove part of her clothing and cannot easily conceal herself. Most pumps plug into the wall and make a distinctive, very audible pumping sound. The equipment needs to be cleaned afterward, and the breast milk must be stored properly and refrigerated.

Although not required by law, offering a space with any of the following items will greatly improve your employee’s experience and make it easier for her to pump and return to work more efficiently:

  • Chair;
  • Adjacent table for the breast pump to rest on;
  • Electrical outlet;
  • Paper towels or other wipes to clean up;
  • Mirror for the employee to use when getting dressed;
  • Locker or other storage for the pump and supplies;
  • Radio or white-noise machine to block the pump’s distracting noise for coworkers;
  • Sink with running water; and
  • Refrigerator for storing milk, if possible.

Can Women Breastfeed Children While Visiting Our Company?

In addition to the laws requiring employers to accommodate the time and private space needed for employees to express milk during the workday, you must allow all women, not just employees, to openly breast-feed their children on-site. Section 253.165 of the Wiscon-sin Statutes allows a mother to breastfeed “in any public or private location where [she] and [the] child are other-wise authorized to be.” In such a location, you may not do the following:

  • Prohibit a mother from breastfeeding her child;
  • Direct her to move to a different location to breast-feed the child;
  • Tell her to cover the child or breast while breastfeed-ing; or
  • Otherwise restrict her from breastfeeding the child.

Why Should You Support Breastfeeding?

Breastfeeding is important for mothers’ and babies’ health. The American Academy of Pediatrics recommends giving babies nothing but breast milk during the first six months of life. Breastfed babies are less likely to experience sudden infant death syndrome, asthma, ear infections, type 2 diabetes, pneumonia, and many other illnesses. A healthier baby means your employee will need less time off from work for future doctor’s appointments and illness. Mothers who breastfeed also experience a reduced likelihood of postpartum depression, cardiovascular disease, and certain types of cancer.

Breastfeeding is a normal biological process, like eating, sleeping, or using the bathroom. Breastfeed-ing employees need breaks throughout the workday to pump because milk production is constant. If a nursing mother is unable to express milk in frequent intervals, it builds up in her breasts, causing pain and sometimes infection. It also can trigger her body to stop producing milk, which is often the child’s sole source of nutrition.

Is a Company Lactation Policy Wise?

Creating a company policy helps ensure you’re com-plying with the laws. It offers clarity to your supervi-sors about what the company must do to accommodate nursing mothers. A policy clearly defines the roles and responsibilities of employees, coworkers, and supervi-sors, which may help avoid embarrassing or uncomfort-able discussions and encounters. Here are some other benefits:

  • A policy signals your company supports breast-feeding, which may help reassure a new mother in deciding whether to return to work after maternity leave and ease her transition.
  • It tells coworkers what they may need to do to ac-commodate the break time and the private space re-quirements under the law.
  • It warns coworkers that the company won’t tolerate joking or harassing behavior toward nursing moth-ers, which could create a hostile work environment.

Bottom Line

You should establish consistent yet flexible policies to support and promote the expression of breast milk in the workplace and comply with the laws. Any short-term inconvenience in accommodating a nursing mother pales in comparison to the long-term benefits of breast-feeding to her and the child. A thoughtful lactation pol-icy and comfortable private space enable employees to express milk more efficiently and successfully, reduce break time, and feel a greater sense of job and personal satisfaction, thereby reducing employee turnover.

This article, slightly modified to note recent updates, was featured in the October issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "What Employers Need to Know About Breastfeeding at Work," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.