Guest post by Monica Beyer
Since the 1960s, more and more women have been choosing to breastfeed their babies. Many are still doing so when they return to work, which gives rise to the question—where can moms go to pump their breastmilk? Few employees have a personal office with a door and blinds, and nobody wants to retreat to a bathroom stall for privacy. Luckily, federal law requires an employer to accommodate the mom’s needs. What does this mean for a business owner?
The 411 of the Law
When the Affordable Care Act was signed into law in 2010, it amended section 7 of the Fair Labor Standards Act (FLSA), setting out regulations for new mothers that employers must follow during the first year of the baby’s life. Here are the basics: If an employee is covered by the FLSA (see below), you are required to provide her with a private space to pump her milk—and that place cannot be a restroom.
Furthermore, she must be allowed reasonable break time to do so. Since pumping requirements vary from mother to mother, it’s best to leave the length and frequency of breaks up to her discretion (within reason). What you should not do is limit her to a 15-minute break every four hours, if her needs exceed that. Also vital is the notion of “privacy.” This means providing a room with a door that locks and posting signs, so that a woman using a breast pump won’t be surprised by someone barging in.
Who Is Covered by the FLSA?
You may be surprised to learn that certain employees are not covered by section 7 of the FLSA. Most notably, employees who are on salary (as opposed to earning an hourly wage) are exempt. Unfortunately, this includes many women with managerial responsibilities, as well as school teachers.
Small business owners may wonder if they are subject to these regulations, especially if their staff is quite small. “Generally speaking, if a person or business meets the definition of being an ’employer,’ then the FLSA applies,” says Ryan Mahoney, an attorney with Cates Mahoney in Illinois. So, anyone that employs at least one individual is legally an employer, and is subject to FLSA requirements.
Cases of Hardship
A business owner may be able to defend against not allocating for the nursing employee, if their company has less than 50 employees, and doing so would cause an “undue hardship” on their business. For example, if your small business simply doesn’t have the space to partition off for pumping, then you may be given a pass.
That said, the burden of proof is on the employer, not the employee. Mahoney explains, “Whether accommodating a breastfeeding mother is an undue hardship is determined by considering the size, financial resources, nature, or structure of the employer’s business.”
Furthermore, many states have their own laws that protect breastfeeding employees beyond the federal provisions. “I would recommend that small business owners who have questions about this read materials available from the U.S. Department of Labor,” notes Mahoney. He also says it’s not a bad idea to chat with a local employment lawyer and make sure your policies are in compliance.
It’s pertinent to know the ins-and-outs of this particular bit of labor law well before your expecting employee goes on leave, so you can welcome the new mom back into a space that suits her needs.
More answers to pressing questions
Monica Beyer is the author of two books and has been a freelance writer since 2008. Her work has appeared in SheKnows, Babble, Mental Floss, GOOD Magazine, Good Housekeeping, and more. She also writes about legal issues in everyday life on the Avvo Stories blog. Avvo is a website with an answer when you’re thinking, “Is that even legal?” We can also help you get a lawyer, a w9 tax form, or an online divorce. Avvo—Legal. Easier.
This article was originally written on November 17, 2016 and updated on June 16, 2022.