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Discrimination Against Breastfeeding Employees & Workers

The Affordable Care Act created the first federal law to address the needs of breastfeeding employees in the workplace. Section 4027 of the Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time” for nursing workers to express milk for their children. In 2018 the Massachusetts Pregnant Workers Fairness Act (PWFA) went into effect, providing additional protections to employees who need to express milk at work.

Who is covered by the Affordable Care Act?

Because the law is an amendment to the FLSA, it applies only to those employees covered by that law. The law applies to “non-exempt” employees under the FLSA; that is those who make less than $23,600 a year, those who are not salaried, and who do not perform exempt job duties. Those who perform exempt job duties include executives, professionals (for example lawyers, doctors, and teachers), and administrative professionals who provide operational support to the company.

Employers with fewer than 50 employees can be exempt from the requirements of Section 4027 if it would constitute an “undue hardship” for them to comply. To determine whether complying with the law constitutes an undue hardship the Department of Labor would look at the difficulty or expense of complying with the law compared with the employer’s size, resources, and the nature of the business.

What Does the Law Require?

The law requires that an employer provide “reasonable break time” for nursing employees to express milk as frequently as needed by each mother, and provide a private location, which cannot be a bathroom, for the employees to use to express milk. The law does not require the employer to pay the mother during this break time, however, if the employer offers its employees paid break time it must allow nursing employees to use that time to express milk.

What Protections Does the Pregnant Workers Fairness Act Provide?

The PWFA amended Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law requires employers to grant reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. Two of the accommodations are “more frequent or longer paid or unpaid breaks,” and a “private non-bathroom space for expressing breast milk.”

The law prohibits employers from taking adverse actions because an employee requests those accommodations. So, for example, an employer who refuses to hire or promote someone because they have requested accommodations under the law engages in illegal discrimination (as long as with the accommodations the employee can perform the “essential functions” of the job).

How We can Help

If you are entitled to reasonable break time and private space to express breast milk and your employer is not providing that break time, your rights have been violated. We can help you negotiate with your employer to ensure that you are afforded the time and a reasonable location in which to express milk. If you feel that you have been discriminated against in the workplace because you are a nursing mother, we can help you try to negotiate a resolution with your employer and if that fails, can represent you in pursuing a legal claim for discrimination.

If you believe your rights as a breastfeeding mother are being violated in the workplace, please contact us at (617) 742-6020.

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