Pregnancy Discrimination: Reviewing Lactation Legalities

By Jill Halper

Central to any present day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.

The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.

The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”

Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need.  Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.

How does all of this apply to employers and nursing employees in Connecticut?

The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.

Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”

Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.

Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:

(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.

(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.

(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.

(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.

This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.

It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.

If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Mark P. Carey P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.

Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.