HR Minute

Lactation in the Workplace

Many employers are uncertain how to handle requests by female employees for break periods and special locations for expressing breast milk. The law is clearly trending in favor of policies that permit female employees to express breast milk in the workplace.

The EEOC has interpreted the Pregnancy Discrimination Act to give female employees the same freedom for lactation-related needs that employees have for other similarly limiting medical conditions. In addition, the EEOC has determined that treating employees who use their break time for breastfeeding less favorably than employees who use their break time for other personal reasons violates Title VII.

Lactation is also addressed in 2010 amendments to the Fair Labor Standards Act (FLSA). The amendments require employers to provide a reasonable break time for an employee to express breast milk for one year after the child’s birth. The break time may be noncompensable. The amendments also require an intrusion-free place, other than a bathroom, where an employee can express breast milk.

Oddly, the FLSA does not provide for enforcement of these amendments because the time involved is noncompensable. However, an employee may generate a claim of retaliation if she suffers any adverse action after seeking the break time. Moreover, an employee may claim that failing to allow her to express breast milk is a form of hostile work environment.

The bottom line is that employers should allow female employees the opportunity to express breast milk, and provide a safe and discreet place where they can do so.

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