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FLSA Requirements to Accommodate New Mothers

Posted on November 14, 2016

Are you doing enough to accommodate your new mothers?

California law requires employers to reasonably accommodate employees who want to express breast milk at work. The general definition of expressing breast milk is to pump or otherwise remove breast milk from one’s body.

Which employers are required to provide this accommodation?

Federally, all employers covered by the FLSA must conform. You may be exempt from the law if you employ fewer than 50 people and can show that compliance with the regulation would create an undue hardship.

In California, however, the Fair Employment and Housing Act (FEHA) protects from discrimination, harassment and retaliation on the basis of “sex,” which specifically includes “breastfeeding and medical conditions related to breastfeeding.” Therefore lactation is protected by FEHA’s laws against pregnancy discrimination.

Employees may request a reasonable accommodation of their need to express milk, the burden is on the employers to evaluate the request.

What are you required to do?

  • Provide a reasonable amount of break time for employees to express breast milk
    • Nonexempt (hourly) employees can be required to use the paid, break time you already provide. If the employee needs additional time beyond the normal paid rest break for expressing milk, the time must be provided, but it may be unpaid.
    • Exempt employees may take reasonable breaks to express milk as part of their regular workday.
    • If they choose to, employees may use their lunch break, but you are still required to provide reasonable break time if necessary.
  • Provide the use of a private place (other than a toilet stall) that’s in close proximity to the employee’s work area for the employee to use to express breast milk. The employee’s normal work area can (i.e. private office)be used if it allows the employee to express milk in private.

What can happen if you don’t comply?

The Labor Commissioner may issue a citation to employers that violate this law, subjecting them to a civil penalty of $100 for each violation.

How Private is Private?

Employers must make reasonable efforts to provide a room, other than a toilet stall, in close proximity to the employee’s work space.

It can be an employee’s office or a separate room. To ensure privacy, a locking door with an appropriate sign, such as “Private. Please Do Not Enter Without Prior Authorization,” will ensure only those who have a legitimate need to be in the space can enter.

Because transgender employees are also protected, do not use gender-specific terms to address privacy.

Best Practices for New Mothers

  • Provide reasonable accommodation to employees who request it for lactation purposes.
  • Ensure your workplace has an appropriate place to express breast milk if an employee requests accommodation.
  • Do not discriminate on the basis of gender when evaluating a request for lactation accommodation.
  • Update policies to ensure compliance with applicable laws.
  • Never deny a request for the need to express breast milk/lactation without first consulting legal counsel. There are gray areas of compliance that should be explored.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions. Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.