“Retention of women, particularly women with children, has become a challenge, due in part to the inability of employers to accommodate their unique needs and circumstances, one of [which] is breast-feeding,” Special Counsel Sarah Bell wrote in a recent article for Workforce.

Bell, a member of Pryor Cashman's Labor + Employment Group and co-chair of the firm's ADA Defense practice, revealed that while many mothers wish to continue breastfeeding upon returning to the workplace, they are more likely to stop doing so sooner than non-working mothers because they are not afforded adequate time or privacy to pump milk at the office.

The Affordable Care Act (ACA) and The Federal Right to Breastfeed Act: Employer Responsibilities

“Federal law and a number of states now require employers to provide time and space for new mothers to express breast milk,” Bell explained.

The Affordable Care Act (ACA), for example, sets forth numerous requirements for the accommodation of breast-feeding employees. Specifically, employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth, each time such employee has a need to express milk. Employees are also entitled to space, other than a bathroom, which is shielded from view and free from intrusion, where they can express milk.

Employers, however, are not required to compensate such employees for any work time spent for such purpose unless the employee is routinely provided compensated breaks; “then an employee who uses that break time to express milk must be compensated in the same manner as other employees,” Bell said.

Additionally, the Federal Right to Breastfeed Act allows women to breast feed “at any location in a federal building or on federal property, if the woman and her child are otherwise authorized to be present at the location.”

Must All Employers Comply With Federal Law?

Only employers covered by the Fair Labor Standards Act (FLSA) must comply with the break time for nursing mothers provision, unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship on their business.

Under federal law, “most employers must provide breast-feeding employees who are non-exempt under the FLSA with ‘reasonable break time’ and a private place to express milk during the workday until the child turns a year old,” Bell wrote.