On August 21, 2018, Illinois Governor Bruce Rauner signed House Bill 1595 (“HB 1595”) amending the Nursing Mothers in the Workplace Act1 (the “Act”). Effective since 2001, the Act applies to employers with more than five employees and grants reasonable break time each day to an employee needing to express breast milk for her infant child. HB 1595 makes several significant changes to the Act, including to the compensability of break time under the Act, and the scope of an employer’s ability to avoid providing the required break time to its employees.
First, the amendments require “reasonable break time” (instead of “unpaid break time”) each time an employee needs to express milk. This requirement must be honored for up to one year after the child’s birth. Also, under the amendments, an employee’s break time “may” run concurrently with any break time already otherwise provided; the prior version of the Act stated that the break time “must, if possible” run concurrently with any break time already provided.
Significantly, the amendments appear to prohibit employers from reducing an employee’s compensation for time spent for the purpose of expressing milk. Previously, employees could use their existing compensated breaks (usually 20 minutes or less pursuant to the federal Fair Labor Standards Act) to express milk, but any excess break time could be uncompensated. The amendments now imply that reasonable lactation breaks lasting longer than 20 minutes must be compensated. In light of ambiguity in the Act’s language, and absent additional guidance from the State, employers should consider following the most conservative approach, i.e., granting nursing mothers paid break time.
Finally, the amendments modify the exemption provided under the Act with respect to an employer’s ability to avoid providing the required breaks. Previously, employers were exempt from providing breaks if doing so would “unduly disrupt the employer’s operations.” This phrase was not defined. The amendments modify this language to require employers to prove an “undue hardship” in order to avoid providing the required breaks, and must do so using the “undue hardship” definition found in the Illinois Human Rights Act (IHRA).
Under the IHRA, “undue hardship” is defined as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer.2 As with other pregnancy or childbirth accommodation requirements under the IHRA, the employer bears the burden of proving an undue hardship.3 This change appears to impose a more significant burden on employers in order to meet the exemption.
The Act still obligates employers to make reasonable efforts to provide a room or other location in close proximity to the employee’s work area – other than a toilet stall – where an employee can express milk in privacy.
The amendments created by HB 1595 took effect upon enactment. In light of these changes, employers should review their break and lactation accommodation policies to ensure compliance with the Act, as now amended.