Under an ordinance signed on September 3, 2014, Philadelphia now requires public and private employers to provide reasonable accommodations to employees who need to express breast milk. Philadelphia employers must provide employees paid (if otherwise available to the employee) or unpaid break time to express milk as well as a private, sanitary space that is not a bathroom to express milk. The ordinance exempts an employer from these requirements only if they pose an “undue hardship.” The ordinance is an amendment to Philadelphia’s Fair Practices Ordinance (Chapter 9-1100), and is effective immediately.
In many respects, Philadelphia’s ordinance mirrors the amendments to the Fair Labor Standards Act (FLSA) enacted by the Patient Protection and Affordable Care Act of 2010 and commonly referred to as the “Break Time for Nursing Mothers” provision. There are, however, three important distinctions.
First, the FLSA only provides protections to employees who are nonexempt under the FLSA. Philadelphia’s new ordinance, however, requires that, unless the employer can establish an undue hardship, accommodations must be made available to all employees expressing milk, regardless of whether or not they are exempt from the FLSA’s overtime requirements.
Second, the FLSA only requires an employer to provide break times for an employee to express breast milk for one year after a child’s birth. By contrast, Philadelphia’s ordinance is not limited in time. Thus, if an employee chooses to express milk and nurse her child past the child’s first birthday, the employer is still required to provide the employee with break time and a space to express milk.
Finally, Philadelphia’s ordinance requires that the space provided to express breast milk be “sanitary.” Although the ordinance does not define that term, employers should be mindful of this requirement when identifying areas available to nursing women for expressing breast milk.
As with the federal law, there are some ambiguities regarding the scope of this ordinance. It remains to be determined, for example, what constitutes a reasonable break time, whether more than one room needs to be provided in workplaces with large numbers of nursing mothers, and whether the employer must provide a chair, an electrical outlet, and a place to store the milk after it is pumped.