States Support Nursing Mothers

Nobody seriously doubts the value of breast-feeding, but until recently, the connection between nursing and employment hasn’t been on policymakers’ radar screens.

That started to change in the mid 90’s, when Florida lawmakers approved a measure allowing facilities providing maternity services like breast-feeding to label themselves “baby-friendly” on promotional materials. Minnesota and Tennessee went one step further in the late ’90s, requiring employers to provide unpaid break time and a private room for employees to express breast milk.

In the last two years, lawmakers in nine more states — California, Connecticut , Illinois, Louisiana, Maine, Maryland, Rhode Island, Texas and Washington — have addressed the issue.

A California law which took effect on January 1, 2002, requires companies to provide reasonable break time, running concurrently with other paid breaks, for employees to express breast milk, and to make reasonable efforts to find private locations, other than rest rooms, for them to do so. But if allowing the employee to express the milk, and finding a place for her to do it, would seriously disrupt operations, companies may avoid the requirement. Lawmakers even gave the new law some clout: the Labor Department has the power to fine employers $100 for each incident of refusal.

Lawmakers in Washington State took a more public relations-oriented approach. Washington’s new pro-breast feeding law, which took effect last July 22, allows companies to use the designation “Infant Friendly” on their promotional materials if they set up workplace breastfeeding policies touching on matters such as flexible scheduling and sanitary private locations. Lawmakers are waiting to see whether allowing employers the good publicity will be a more effective incentive than exercising the powers of a state enforcement agency.

A new Illinois law, which took effect last July 12, requires companies to provide employees with reasonable break time and to try to find a private place for expressing the milk. Unlike California’s law, the Illinois statute doesn’t set up an enforcement mechanism, leaving the issue up to employers’ good will.

Connecticut last year moved in a direction similar to California. It’s new law, which became effective on October 1, requires employers to make reasonable efforts to provide private rooms, but goes beyond the California law by giving employees the right to express milk or even breastfeed at work, during breaks. The Connecticut law bars employers from discriminating against women who exercise that right.

But to give companies some guidance, lawmakers specified that a “reasonable effort” is one that doesn’t impose undue hardship, and that “undue hardship” would involve significant difficulty or expense in light of the size of the business, its financial resources, and the nature of its operations. These factors are similar to the undue hardship standards of the Americans with Disabilities Act, with which most companies are already familiar, and give employers some idea of what’s expected.

Maine’s new law, which became effective last September, affirms a mother’s right to breast feed in any location where she otherwise has a right to be, and gave the state’s Human Rights Commission the power to enforce it. But it leaves it up to companies to set their own policies.

Until recently, most state laws merely allowed women to nurse in public without being arrested for indecent exposure. Now, as more states are acknowledging the importance of supporting nursing mothers at work, it’s clear that, in the eyes of state lawmakers, the concept of workplace self-expression has taken on new meaning.  

Diane Cadrain is a state employment law specialist for Business and Legal Reports.