Governor Christie signed into law on January 8, 2018, a bill amending New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-12 (NJLAD), which adds “breastfeeding” as a protected category from harassment, discrimination and retaliation. A copy of the legislation can be found here. This means that employers may not refuse to hire or employ or to discharge a breastfeeding mother or to discriminate against such individual in “compensation or in terms, conditions or privileges of employment.”
Notably, the NJLAD was also amended to require employers to make reasonable accommodations for breastfeeding mothers by providing both break time during the day and a suitable private location in order to express milk. The private location cannot be a bathroom stall and must be reasonably close to the work area.
Employers would need to comply with this new law unless they could show undue hardship on business operations. Determining undue hardship includes consideration of the following factors:
- the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget;
- the type of the employer's operations, including the composition and structure of the employer's workforce; the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
- the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
Many large employers are already required to provide these accommodations under the Affordable Care Act (ACA); however, this amendment means that all employers in New Jersey, regardless of size, will be required to provide accommodation to breastfeeding mothers returning to the workplace following the birth of a child.