As employers get ready for the New Year, they should keep in mind recent changes to the Illinois Nursing Mothers in the Workplace Act ("the Act”). These changes to the Act went into effect on Aug. 21, 2018, and provide greater protections for nursing mothers.
The Previous Version of the Act
Prior to the recent amendments, the Act provided "unpaid break time" to nursing mothers to express breast milk that was required to, “if possible, run concurrently with any break time already provided to the employee." This implied that any break time for expressing breast milk beyond legally mandated paid breaks, as required by the Fair Labor Standards Act and Illinois Wage Payment and Collection Act, could be unpaid. The previous version of the Act also allowed employers to avoid providing break time if the breaks would "unduly disrupt the employer's operations"—an undefined standard.
The Act’s 2018 amendments expand protections for nursing mothers in three major ways. First, the amendments change the Act by removing "unpaid” to require "reasonable break time" for expressing breast milk. The Act also states that "[a]n employer may not reduce an employee's compensation for time used for the purpose of expressing milk or nursing a baby."
Second, the amendments state that the reasonable break time "may," as opposed to "must,” "run concurrently with any break time already provided to the employee."
Finally, employers are now required to provide reasonable break time “as needed” for one year after the child’s birth and must do so unless it can prove that the reasonable break time causes an “undue hardship.” The Act points employers to the definition of undue hardship in the Illinois Human Rights Act (IHRA). The IHRA defines undue hardship as “an action that is prohibitively expensive or disruptive,” and provides several factors to consider, such as:
- The nature and cost of the accommodation.
- The facility’s financial resources and the number of persons employed at the facility.
- The financial resources and size of the employer.
- The type of operation of the employer.
The Act still only applies to employers with more than five employees, and, while no explicit private right of action exists in the Act, at least one court has allowed a plaintiff to proceed on an implied private right of action theory. The Act’s previous requirement for employers to provide a room or private location for an employee to express breast milk or nurse an infant is still applicable.
Employers in Illinois should review their current policy for nursing in the workplace and update the policy to comply with the Act’s requirement of compensating reasonable break time for nursing mothers that need to express breast milk. Taft’s Labor & Employment Group is ready to help existing and future clients navigate these legal issues and follow best practices. Feel free to call us with any questions regarding these changes in the law, and how they impact your business practices