Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies. After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.
For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth. See 29 C.F.R. 207(r). This law is also known as the “Break Time for Nursing Mothers Law.” 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. All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.
In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA). It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job. Id.