I was recently asked what an employee’s rights are in the workplace concerning expressing (pumping) breastmilk. This is such an important issue, that it constitutes one of the rare instances in which I am happy to provide “employee-side” guidance on the law as opposed to my usual role in representing management. But then, I also don’t think it’s burdensome on the employer, I believe it has a positive public health impact, and I would strongly encourage all of the clients I work for at my firm to try their best to comply with the law. Below is a re-hash of some information I provided on this topic. DISCLAIMER: none of this constitutes legal advice, and I am not acting as your lawyer by virtue of providing this info. Talk to your lawyer about your particular situation. Use some common sense, in other words. Otherwise …
In 2001, the Connecticut General Assembly passed Public Act No. 01-182, An Act Concerning Breastfeeding in the Workplace. This legislation created a new section of the Connecticut General Statutes (C.G.S. § 31-40w), which provides that “[a]ny employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period.” In addition, this law requires employers to “make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.” The law further defines “reasonable efforts” as “any effort that would not impose an undue hardship on the operation of the employer’s business,” while “undue hardship” is defined as “any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.”
My analysis of the Connecticut law is similar to the courts’ interpretation of the “reasonable accommodations” provided to employees with disabilities under state and federal laws. The employer must do what is “reasonable” under the circumstances to allow the nursing mother time and space to pump. So, for example, asking your employer to construct a private suite next door for your exclusive pumping needs would most certainly be deemed unreasonable, but finding a nearby comfortable, sanitary room with a locking door that is not a bathroom would likely be considered reasonable. This law prohibits employers from requiring employees to pump in the bathroom. It is likely that this law also prohibits employers from requiring employees to pump in their cars, due to the lack of privacy.
The law does not address whether or not an employer can impose limitations upon the manner and setting in which the woman expresses her milk, but it is likely that such limitations will be upheld if necessary to ensure efficient business operations, and if the limitations do not unreasonably restrict the rights of the mother. Notably, outside of the employment context, a separate law makes it illegal for a place of public accommodation to restrict a mother’s right to breastfeed her child; yet another statute makes it a crime for any person to deprive a woman of her right to breastfeed. See C.G.S. § 46a-64; § 53-34b.
Connecticut further prohibits employers from taking any discriminatory action against an employee who has elected to exercise her rights to express milk or breastfeed in the workplace. This means that an employee cannot be disciplined, reassigned to a less favorable position, or otherwise discriminated against on the basis of the fact that she requested a space to pump or takes time to pump.
In addition to Connecticut law, in 2010, the federal Fair Labor Standards Act was amended to include a provision requiring “(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and (B) 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.” This provision can be found at Title 29, Section 207, Subsection (r) of the United States Code, or 29 U.S.C. § 207(r). Because the Connecticut law is relatively broad, this provision does little to expand the rights of pumping mothers in Connecticut, except to ensure that employees receive actual break time to pump, rather than just a space to pump. The employer may require such break time to be taken unpaid.