Take a Break! Georgia Amends Its Lactation Break Law

The state of Georgia has had a lactation break law on the books for quite some time, but with House Bill 1090 the legislature made some important changes, effective August 5, 2020. As most employers know, the federal Fair Labor Standards Act (FLSA) provides lactation break requirements for employers, so there has not been a lot of focus on Georgia’s state counterpart, which was merely permissive. That is until now. The Georgia amendment has beefed up the statute in a few notable ways. Most importantly, the law now requires that employers provide paid lactation breaks to all employees.

The first notable amendment to the Official Code of Georgia Annotated (O.C.G.A.) Section 34-1-6 states that the employer “shall provide break time of a reasonable duration” and that the break time “shall be paid at the employee’s regular rate of compensation” (previously, it could be unpaid). The statute does not define reasonable duration; however, it clarifies that an employer is not “required to provide paid break time to an employee on any day that the employee is working away from the employer’s worksites.”

Second, the amendment states that employers are prohibited from requiring employees who are paid on a salary basis to use paid leave or reducing their pay as a result of lactation breaks. This makes it clear that exempt employees also receive the protection of the law. The FLSA’s lactation break requirements, on the other hand, do not apply to exempt employees.

Third, the employer must provide “a private location, other than a restroom,” where the employee can express breast milk (previously, the language was permissive and stated that an employer “may make reasonable efforts” to provide a room or other location to the employee).

Finally, while “employer” is defined as “any person or entity that employs one or more employees,” there is an exemption for employers with fewer than 50 employees (similar to the FLSA). The amendment states that “[a]n employer that employs fewer than 50 employees shall not be subject to any requirement of this Code section  that would impose an undue hardship” on the employer. Similar to other “undue hardship” analyses, an employer may want to consider its size, financial resources, and nature and structure of its business to determine whether an employee’s lactation break request is an undue hardship.

Some additional points regarding the Georgia statute and the FLSA include the following:

• the Georgia statute does not have a one-year cap on providing lactation breaks like the FLSA;
• the FLSA does not preempt state laws that provide greater protections for employees; and
• the FLSA provides protection from retaliation.

O.C.G.A. 34-1-6 now carves out state and political subdivisions from the definition of employer; however, they are addressed separately in O.C.G.A. 45-1-7.

Employers may want to carefully review the Georgia statute as well as the FLSA and ensure they are complying with both laws. This includes reviewing handbooks and policies, making sure each worksite has the required private place for lactation breaks, educating employees, and training managers and supervisors regarding the requirements of both laws.