Maybe once a year, I get a call from a client asking about what the law requires with regard to lactation breaks for nursing mothers. I tell them that § 207(r) of the Fair Labor Standards Act requires them to provide (A) break time for an employee to express breast milk for her nursing child each time she has need to do so; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. 29 U.S.C. § 207(r). They point out that the employee already has a 15-minute break in the morning and another in the afternoon—why can't she just use those breaks? I tell them the employee can take a break "each time she needs to express milk," which may not be on her normal 15-minute break schedule. They ask if they have to build a separate room. I tell them no, but they have to provide a place that is appropriate—specifically not a bathroom (no matter how nice their bathrooms might be)—shielded from view and free from intrusion. I point out that they don't have to pay the employee for these breaks, which is often the only positive item they take from my advice. So far, no one has called me back to say they have been sued by a nursing mother for denying her breaks.
Well, I just read a recent order from a federal district court in New York that reminded me of the importance of training your supervisors about these lactation breaks. In Lico v. TD Bank, the court denied the Bank's motion to dismiss Lico's lactation break claims. Although we do not know the Bank's side of this story at this stage of the game, Lico claims she returned from maternity leave to her job at the Bank and had a discussion with her boss that went something like this (with some small liberties):
Lico: I am nursing my new baby, and will need to take breaks to express milk.
Heartless Supervisor: You can take two breaks a day and express the milk in the bathroom.
L: That doesn't seem very sanitary.
HS: Okay, use the mailroom.
L: (Gasp) That doesn't even have a lock on the door!
HS: Okay, okay—use the safe deposit room.
Thinking her options were not adequate for her needs, Lico started nursing her baby at home—coming late to work, leaving during the day to go home, or leaving earlier than usual at the end of her day. A few months later, the Bank terminated her for attendance issues, so she sued.
So what are the takeaways from this vignette? First, train your supervisors that, if an employee asks about lactation breaks, the employer has to provide breaks to express milk (and it may be more than two in a day). Second, make sure supervisors know to provide an appropriate place and it can't be the bathroom or a room without a lock on the door. Stay tuned to find out whether a safe deposit room was really okay or not.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
