Illinois recently amended the Illinois Nursing Mothers in the Workplace Act (“Act”) to:

  • eliminate the previous requirement that lactation breaks run concurrent to breaks already provided by an employer,
  • prohibit employers from reducing pay during lactation breaks, and
  • require employers to provide break time for mothers to nurse.

The changes appear to require employers to provide paid breaks for lactation purposes. The Act’s original language allowed employers to provide “reasonable unpaid break time” for mothers to express milk. The amendments eliminate the word “unpaid” and prohibit employers from reducing “an employee’s compensation for time used for the purpose of expressing milk or nursing a baby.” Thus, although not clearly worded, the statute now appears to mandate paid lactation breaks.

Additionally, the amendments appear to add a requirement that employers provide time for mothers to nurse an infant. Specifically, the amendments prohibit employers from reducing compensation for time used for expressing milk “or nursing a baby.” The Act’s original language only required breaks for employees to “express milk for her infant child.” Requiring break time for nursing a baby is notable because the Act does not require employers to provide a place for mothers to nurse. The Act requires employers to provide a “room or other location, in close proximity to the work area, other than a toilet stall, where an employee . . . can express her milk in privacy,” but it does not contain any similar requirement for nursing a baby. Lawmakers have not provided guidance interpreting the amendments. Therefore, employers should nevertheless read the Act conservatively and provide a private space for mothers to nurse a baby, as well as to express milk.

The amendments also clarify that employers must provide lactation breaks for up to one year after the child’s birth, and further provide that an employer is only exempt from complying if providing the breaks would create “an undue hardship,” as defined by the Illinois Human Rights Act (“IHRA”). The IHRA defines “undue hardship” as actions that would be “prohibitively expensive or disruptive” when considered in light of several factors. The factors to consider include the cost of the accommodation needed, the overall financial resources of the facility or facilities involved in the provision of the accommodation, the overall financial resources of the employer, and the type of operation of the employer.

What Employers Should Do Now

All employers governed by the Act (i.e., companies employing more than five people) should do the following:

  • Review and revise, as necessary, company policies to provide nursing mothers reasonable paid break time for lactation purposes and a convenient location to privately nurse a baby.
  • Inform your current staff about—and modify any new hire paper work, policies, and procedures to include—your company’s policy for nursing mothers.
  • Budget appropriately to account for the additional pay that may be required to provide paid break time for nursing mothers.