While many employers are focused on efforts by the U.S. Department of Labor (DOL) to implement and enforce its revised white collar overtime regulations under the Fair Labor Standards Act (FLSA), employers should not overlook another aspect of the FLSA concerning lactation breaks for breastfeeding mothers.

The music streaming service Tidal has been sued by a former employee, Lisette Paulson, for allegedly terminating her employment upon her return from maternity leave and after she inquired about a private area to pump breast milk. In Lisette Paulson v. Tidal, et al., 1:16-cv-09049-LTS, filed in the Southern District of New York on November 21, 2016, Paulson claims that her employment was terminated several days after her return to work on the day after she requested a private area to pump breast milk but was instructed to use a bathroom and told she could not use an office.

Paulson’s lawsuit alleges, among other things, violations of Title VII of the Civil Rights Act of 1964, based upon sex and pregnancy discrimination; a violation of the New York Civil Rights Act; and violation of New York State Labor Law 6 in addition to the federal Fair Labor Standards Act’s (FLSA) requirement that, as amended by the Patient Protection and Affordable Care Act (PPACA), nursing mothers be provided “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.”

The FLSA also requires that employers 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.” In addition, the FLSA requirements do not preempt state laws that may provide greater protections to employees (such as paid break time, break time for exempt employees, or break time beyond one year after a child’s birth).

Most states have some form of breastfeeding or lactation break law, prohibit discrimination against breastfeeding mothers, or state that mothers may breastfeed in public places without fear of public indecency charges. Many states go further, requiring employers to provide reasonable unpaid lactation breaks in private, secure sanitary rooms or other locations (other than bathroom stalls) close to nursing employees’ work areas, as long as the nursing employees make reasonable efforts to minimize any disruption to the employer’s operations and subject to a potential undue hardship exception. (For examples of these provisions, see the laws of Arkansas, California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Indiana, Maine, Minnesota, Oregon, Rhode Island, Tennessee, and Vermont.)

North Dakota and Washington’s laws allow employers to use an “infant friendly” designation in promotional materials if they adopt workplace breastfeeding policies that include, generally: (1) flexible scheduling and breaks for expressing breast milk; (2) convenient, sanitary, safe and private locations, other than restrooms, for breastfeeding or expressing breast milk; (3) convenient, hygienic refrigerators for breast milk storage; and (4) convenient, clean, and safe water sources with facilities for washing hands and rinsing breast-pumping equipment at each location.

Georgia, Oklahoma, and Virginia’s laws support similar measures by stating that employers are “encouraged” or “may” provide lactation breaks under the circumstances, but they do not require them. The exceptions are Alaska, Idaho, South Dakota, West Virginia, and Utah, which do not have state law limitations, but for whom federal FLSA requirements and Title VII would apply.

According to the Centers for Disease Control and Prevention’s Breastfeeding Report Card, 2016, breastfeeding rates in the United States continue to rise. As such, it is inevitable that employers will be faced with these issues, whether due to federal or state law requirements. The attorneys at Ogletree Deakins will continue to monitor and report on these developments and analyze the compliance issues that may arise for employers.

Matthew K. Johnson, a shareholder in the Greenville office of Ogletree Deakins, is the author of OD Comply: State Leave Laws, a subscription-based product compiling state leave requirements with a concise guide to legal compliance in all 50 states and the District of Columbia. OD Comply: State Leave Laws are updated and provided to OD Comply subscribers as the law changes.

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Leaves of Absence/Reasonable Accommodation

Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

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