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Nursing mothers must be accommodated

By Kenneth Chang
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Kenneth Chang

Kenneth Chang

For those of us here in Wisconsin who swear by the health benefits of breast milk, 2010 was a good year.

A new state law established a mother’s right to breastfeed her child wherever both mother and child are otherwise authorized to be. And a new federal law has recognized the reality that many employees will want to continue breastfeeding even after returning to work.

To make life easier for these employees, the Fair Labor Standards Act now requires employers to provide accommodation for nursing mothers. This includes “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” It also includes “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Employers with fewer than 50 employees might be excluded from these federal requirements, but only if such requirements would impose “an undue hardship.” Finally, the new provisions do not preempt any state law that provides greater protections to employees.

Since this new provision was passed, employers have been working hard to ensure that they are in compliance. On Dec. 20, the U.S. Department of Labor set forth its preliminary interpretation of these new requirements, thus providing some helpful clarification.

First, federal law does not require employers to compensate nursing mothers for breaks used for breast-pumping. Where an employer already provides paid breaks, however, a mother who uses that break time to pump must be paid in the same way that other employees are compensated for that break time.

Second, flexibility is important. Employers must recognize that the number and timing of the breaks may vary based upon the baby’s nursing schedule and the mother’s health needs. The Department estimates that mothers typically need two or three breaks during an eight-hour shift, and that longer shifts would require additional breaks. Although the act of expressing breast milk typically takes about 15 to 20 minutes, employers should also consider other factors including the time it takes at their particular workplace to take care of setting up, pumping, cleaning up, and storing the milk.

Third, the new provision’s space requirements require employers to make a private room available for use if possible. Where that is not possible, employers can create a space by using partitions or curtains and covering all windows. Further, the employee’s privacy must be ensured through appropriate signage or a lock on the door.

The space itself need not be dedicated to nursing; it is enough that the space be available to nursing mothers when needed. At a minimum, the space must contain a place to sit and a flat surface (other than the floor) on which to place a pump. Ideally, the space would also have access to electricity, running water, and a clean refrigerator for the storage of milk. While these additional features are not required by the new law, the Department has noted that their provision may decrease the time needed by nursing employees.

In light of this new law and its interpretation by the Department, employers may wish to consider drafting a written policy addressing breastfeeding in the workplace. The policy should include the following elements:

Flexible break schedules for nursing mothers;

Provision of a private space with a seat and a table;

Access to electricity, running water, and refrigeration, if possible;

A procedure for requesting other accommodations; and

A statement that jokes and/or harassment based on breastfeeding will not be tolerated.

This last requirement should not be overlooked. In addition to being in generally bad taste, breastfeeding jokes can become evidence of a hostile work environment in employment discrimination cases. They are not to be taken lightly. Luckily, this potential liability can be avoided through careful planning, clear communication, and consistent enforcement.

By embracing the requirements of this new breastfeeding law and adopting appropriate policies, employers can use this law into an opportunity to demonstrate their full support for employees and their families. These efforts will not go unappreciated by new parents, for whom a little help can go a long way.

Kenneth B. Chang is an attorney at Gonzalez Saggio & Harlan, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via e-mail at [email protected].


  1. Elizabeth Peterson

    As a working mother who is dedicated to her child and career, I appreciate the new state law and think it will shed light on this subject, creating a better workplace.

  2. How will this work in practice? What if the sign is objected to by the mother? Will there be the need to set aside a certain area for the privacy of breastfeeding? Will that area have to be equipped with any special furnishings or other equipment? Does this assume the child will be at work with the mother the whole day? What if mom would want to work and breast feed at the same time in her office or at her work station. Is that permissible, or is that an employer’s call?

    I can understand those who swear by the benefits of breastfeeding, but this seems to be a very difficult situation for the employer. In fact the whole thing seems unbelievable.

  3. I am a huge supporter of working-Nursing Moms! My Employer and Supervisors were always supportive of my time off the floor pumping. They made sure I had a clean, comfortable and private place to pump. They were always professional and never made rude comments. I too really appreciate this law for all nursing moms.

  4. What a load of crap. A room with running water, a fridge, and electricity? Wow, have we looked at how are homeless are treated or how many people dont have access to clean running water? But we need to make a special room with all these ammenities for someone to feed their child that was THEIR choice to have? Give me a break. When we had our child, we planned accordingly and didn’t expect someone else to accomidate our dicision to have our baby.

  5. You need access to running water a fride and electricity..which you will find in most break rooms….The room requires a flat surface and seat. Do you seriously find that too difficult to provide?

  6. It’s not about a decision to have a child, it’s about bring able to provide nourishment for your child when you are away from them. Should the baby starve? And what would you have done if the store decided not to carry formula…I mean, it’s not the stores responsibility to provide nourishment for your child…give me a break!!!

  7. I realize this is a few years old but based on these comments, it’s obvious that some men still have a huge lack of respect for mothers and their commitment to breastfeeding.

    Jim – your questions are almost laughable.

    1) “Does this assume the child will be at work with the mother the whole day?” Ummm….no. That’s called being a stay-at-home mom, in which case this wouldn’t be an issue. I know of no workplace that would allow a mother to have a baby with her all day. If you do, please let me know. I would love to spend more time with my little girl. This is a law set in place for us moms who either have to return to work, or choose to return to work. Some mothers have their child brought to them at feeding times, while others like myself, have to pump at the office because they work too far from home. In either case, a little privacy shouldn’t be too much to ask.

    2) “I can understand those who swear by the benefits of breastfeeding, but this seems to be a very difficult situation for the employer.” Really? I’m inconveniencing my employer by returning to work after childbirth? I should ignore the benefits of breastfeeding simply because it requires a room with a locked door? Please…

    Jo Blow – your comments are as you like to say, ” a load of crap”. I’m not sure what you mean by “planned accordingly”, but I’m assuming your wife/girlfriend either gave up breastfeeding or didn’t have to return to work. If she gave it up, I don’t blame her. It’s harder than it looks. Either way, I hope you’re not insinuating that only those who can afford to be stay-at-home moms should be having children… I am a successful young professional with a college degree and a good, steady income, and even I needed to return to work after my little girl was born. Luckily for her, my employer was not only required to accommodate my decision to have a baby, but is also making accommodations so that I can continue to feed her what’s best for her. (And is happy to do so, by the way.) Until you’ve birthed a child and fed him/her with your own body, keep your ignorant ramblings to yourself. I’m not popping babies out by the dozen and expecting the government to pay for them. I’m a working mom who would be more than happy to correct your spelling.

    – A breastfeeding mother with a full-time job

  8. I love the comments from men…clearly they have no clue.

  9. I suggest that we use the term “human milk” instead of “breast milk.” After all, we don’t call cows’ milk “udder milk.” Is this because men aren’t fixated on cow udders like they are on the human breast?

  10. wow , very defensive women, as an employer we are not obligated to pay you for any of this time other than the required breaktimes set by the state requirements per length of shift. I will agree concessions can be made , but also job responsibilty is also a concern, Does it make sense business cannot continue to function because an employee walks away whenever they feel the need to pump? and that other employees returning from injuries do not get extra brakes (paid) to ice injuries or stretch ? we all know people abuse these needs, i applaud the women who pump at work and realize the benifits , but also encourage women to still sense their responsibilites to employers and co-workers, there is a leave act for pregnant woman, and it is your choice not my responsibility.

  11. Wow, it saddens me that this situation resulted in this outcome. I think the council will be or they should be sorry and embarrassed they went this route. It sounds like Catherine attempted to work with the group and the backward beliefs that a few council members had. I commend this mother and council member for her commitment to her family and to her job. Society does not make it easy for breastfeeding moms to provide for their family and work outside the home. Wisconsin does not make it easy for the breastfeeding mother. By law this mother does have the right to breast feed her child at the council meeting sitting in an area that otherwise the public is allowed to be which is what she was doing when she agreed to move to the public seating area. I think the council would have been wise to consult their lawyers before they decided to deal with this situation in the way they did. Why does the Wisconsin statute 253.165 that specifically allows women to breastfeed in any public place not apply here? It sounds like the ban on all children at council meetings was this council’s way to think they could prevent any breastfeeding in public. I’d be curious if the city has a breastfeeding policy/program in place for any city employee that returns to work and is breastfeeding. Does the city as a whole support these mothers in providing them what the federal law requires as far as the space to pump and what that space by law should look like? If not the city of Eau Claire needs to get on board. If the city does have a policy in place the council needs to be educated on this policy. If the city does not have a policy you need to get one. I would think not having a policy is in direct conflict with federal law. Section 4207 of the new patient Protection and Affordable Care Act which includes a federal law to protect breastfeeding employees returning to work. I think you will need to ban all public from being able to attend your meetings if you don’t want a breastfeeding mother to be in the room. I’m thinking that would not sit well with the public nor be a wise move. Yes children can be distracting even a grown adult could be a distraction at a council meeting if not behaving well. The fact that a mother breastfeeding in public made a few council members uncomfortable resulted in this decision is unfortunate and also dangerous. I’d love to see a large group of breastfeeding mothers show up at the next council meeting that is open to the public. To all the breastfeeding mothers in Eau Claire area I think attending the next council meeting with your breastfeeding baby would show strong support for this mother that has courageously taken a stand against this backward decision the council has made. If you’re not allowed in the council room…fill the halls and walkway. Thank you Catherine for your effort and bringing public awareness to this important issue. I will be following this story. Karen Gresback, RN, IBCLC

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