Under state and federal laws, that is not legal. Breastfeeding mothers have certain legal rights in the workplace. These laws have arisen because of the recognition on the part of health professionals and public health officials that both mothers and children benefit a great deal from breastfeeding. Children who are breastfed have fewer ear infections, respiratory and urinary tract infections, and fewer health care visits, prescriptions and hospitalizations when compared with infants who are never breastfed.

The Affordable Care Act, a federal law signed in 2010, amends the Fair Labor Standards Act to require employers to provide reasonable break time for a nursing mother to express breast milk for her nursing child for up to one year after the child’s birth. These break times must be allowed each time the employee has a need to express milk. The breaks do not have to be paid breaks. However, if an employer already provides paid breaks, an employee who uses break time to express milk must be compensated in the same way that other employees are compensated for break time. The frequency of breaks that an employee needs, as well as the duration of each break is likely to vary among women.

In addition, under the Affordable Care Act the employer must provide a place other than a bathroom in which the employee can express breast milk. Even if the bathroom is private, it is not a permissible location in which to express breast milk under the law. Any location that is provided must be functional for expressing breast milk. If the space provided is not dedicated to use by nursing mothers only, it must be available whenever needed. It is acceptable for the space to be temporarily created when needed, but it must be shielded from view and must be free from any intrusion from co-workers and the public.

However, if an employer employs less than 50 employees, and the rules would impose undue hardship on the employer, the employer does not have to meet those requirements. Whether or not meeting these requirements would impose an undue hardship is determined by looking at the difficulty and expense involved for the company to comply, the company’s financial resources, and the structure of the company’s business.

California also has state laws that protect the rights of breastfeeding mothers in the workplace. Under state law, employers must provide a reasonable amount of break time for expressing breast milk. Employers also must provide the use of a room or other location in close proximity to the employee’s work area for the employee to express breast milk in private. In addition, employers are not allowed to discriminate against employees or potential employees on the basis of sex, which includes breastfeeding or medical conditions related to breastfeeding.

As you can see, nursing mothers have the legal right to continue to express milk at work after they return from maternity leave. At Liberty Law, Micha Star Liberty and Seth I. Rosenberg believe that all breastfeeding mothers whose rights are not being protected should take action to stand up for themselves. If your employer refuses to give you breaks to express breast milk, or to provide you with a private location in which to do it, call the Oakland employment discrimination attorneys at Liberty Law at 510-645-1000 or 415-896-1000. We work with clients throughout the Oakland-San Francisco area, including Hayward, Fairfield, Tracy, Sacramento, San Jose, and the surrounding areas. Call today to learn more or to schedule your free consultation.

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