On September 3, Philadelphia Mayor Michael Nutter signed City Council Bill 130992, amending Philadelphia’s Fair Practices Ordinance and making it illegal “for any employer to fail to reasonably accommodate an individual’s need to express breast milk.” The amendment, which covers all employers that have employees in the City of Philadelphia, will take effect immediately.

Under the amendment, an employer’s failure to reasonably accommodate employees who need to express milk constitutes sex discrimination. A reasonable accommodation for a breastfeeding employee includes “providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk.” Philadelphia Code § 9-1103. The federal Affordable Care Act contains similar requirements, but they apply only to non-exempt employees. The Philadelphia amendment covers all employees, both exempt and non-exempt.

The amendment provides for an exemption to the breastfeeding requirements if the employer can establish that compliance would impose an undue hardship. The factors used to determine whether an employer will suffer an “undue hardship” are (i) the nature and cost of the accommodations; (ii) the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; (iii) the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type and location of its facilities; and (iv) the type of operation or operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. (Philadelphia Code § 9-1128(2)).

Covered employers should review their breastfeeding policies and ensure that they are in compliance. In particular, employers should take steps to permit breastfeeding breaks and locations for both exempt and non-exempt employees.