In House - The FindLaw Corporate Counsel Blog

Are New Breastfeeding Accommodation Laws on the Way?

Although the FLSA only mandates certain employers comply with the laws on accommodating employees that express milk, or breastfeed and need to pump, state and local ordinances have been passed that put the same or more stringent requirements on even the smallest employers.

Generally, for employers that qualify under the federal or state/local law, employees must be provided with a dignified place to take care of their needs. This includes a space that is not a bathroom. However, things like seating, a table or desk, a sink, a refrigerator, and most of all, privacy, are usually necessary.

New Breastfeeding Laws

If you were unaware of new breastfeeding laws, it's likely because you're not in a place where the law changed. So far, only a handful of places have laws more stringent than what the FLSA already imposes. Those places include San Francisco and the state of New Jersey, which have both passed laws going well beyond the FLSA's requirements.

For example, under federal law, the breastfeeding laws only apply to nonexempt employees and can only be claimed for one year, however New Jersey's new law also includes exempt employees and doesn't have a time limit. Interestingly though, under New Jersey's law, any size employer can claim undue hardship, while under federal law, only employers with less than 50 employees can.

Is California Next?

New legislation is currently on the table in California that would basically extend the law San Francisco passed to the entire state. That law requires all employers to provide written notification to employees about the company's lactation policies and the law. Additionally, unlike the FLSA's undue hardship requirement, under the San Francisco law, only employers with less than five employees can claim undue hardship.

Also, beyond California, states like Texas, Wisconsin, Maryland, and Pennsylvania are considering their own legislation.

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