Strategic Policies Protect Breastfeeding in Workplaces and Schools

August 23, 2022 | Deborah Backman

The American Academy of Pediatrics (AAP) recommends that infants exclusively breastfeed for the first six months and continue for one year while introducing complementary solid foods. Policies that support breastfeeding environments in workplaces and schools can help families who choose to reach that goal.

Families who wish to breastfeed in the United States often face barriers in workplace and school settings. Studies also show that Black, low-income, and other systemically marginalized families are disproportionately impacted by work environments without lactation accommodation. To address these disparities, federal, state, and territorial governments are adopting policies to improve lactation accommodations in school and workplace settings.

Lactation Accommodations for Students

In July 2022, the Department of Education issued a notice of proposed rulemaking to amend Title IX of the Education Amendments of 1972 to better support pregnant and parenting students. Specifically, the rule would require that school employees and students have access to clean lactation spaces that are not restrooms, shielded from the public, and free from intrusion. The rule would also recognize lactation as a pregnancy-related condition for anti-discrimination policy purposes.

In addition to federal protections for breastfeeding and lactating students, during the 2021 and 2022 legislative sessions, at least four states (Illinois, Louisiana, Maryland, and Oklahoma) passed laws outlining requirements for lactation support and spaces in schools. In April 2021, Oklahoma passed a law requiring school districts to make reasonable efforts to provide private and secure lactation spaces that are not restrooms and to adopt policies that provide employees reasonable paid break times for lactation.

In May 2021 and June 2022, respectively, Louisiana and Maryland passed bills requiring governing public school authorities to adopt policies regarding attendance, breastfeeding, and childcare for pregnant and parenting students. These laws require that school policies provide reasonable accommodations for lactation, including providing a private lactation space that is not a restroom, and access to a nearby refrigerator and power source. The Louisiana law also requires that public schools allow students to bring equipment for expressing milk to school and provide reasonable break time for lactation.

Improving Lactation Accommodations in Workplaces

The Break Time for Nursing Mothers provision of the 2010 Patient Protection and Affordable Care Act (PPACA) requires employers with 50 or more employees to provide reasonable break time and space for employees to express breast milk up to one year after their child’s birth. These provisions are applicable to employees covered under Section 7 of the Fair Standards Labor Act (FLSA), such as hourly employees who qualify for overtime.

The Break Time for Nursing Mothers provisions expressly allow states to enact laws to provide greater protections to employees. According to the National Council of State Legislatures, thirty states, Puerto Rico, and Washington, D.C. have enacted laws related to breastfeeding workplace protections. One of those states, Connecticut, enacted HB 5158 in June 2021, requiring that employees be permitted to express breast milk onsite during meal or break periods and specifies that lactation rooms should meet a number of accommodations (e.g., close to work areas, free from intrusion, shielded from the public, include or be near a refrigerator, and have access to electrical outlets).

In October 2021, the United States House of Representatives passed the Providing Urgent Protections for Nursing Mothers (PUMP) Act, H.R. 3110, to expand the PPACA Break Time for Nursing Mothers provisions to cover salaried employees and other employees not covered under existing law.

If approved by the Senate and signed into law, the PUMP Act would extend coverage from one to two years after the child’s birth and specifies that time spent expressing breast milk must be considered as working hours if the employee is working while expressing.

In addition to federal protections for lactating mothers, workers are also protected under federal laws prohibiting employment discrimination. The Equal Employment Opportunity Commission (EEOC) of the Department of Labor defines breastfeeding as a pregnancy-related medical condition for which employers must provide reasonable accommodations.

Beyond federal EEOC protections, state have also enacted laws to protect lactating employees from discrimination. At least four states, Connecticut (HB 5158), Virginia, Illinois, and California, enacted legislation applying anti-discrimination provisions to employees affected by pregnancy, childbirth, or related medical conditions such as breastfeeding during the 2021 and 2022 legislative sessions. Connecticut’s HB 5158 also prohibits employers from discriminating or taking adverse action against employees who request accommodations. Similarly, California passed a law in June 2022 prohibiting employers from failing to provide reasonable accommodations for employees related to pregnancy, childbirth, or related medical conditions.

In April 2022, the Guam legislature introduced a bill amending existing employment law to ensure reasonable workplace accommodations for workers whose abilities to perform job functions are limited by pregnancy, childbirth, or related medical conditions, as well as prohibiting employers from taking action against employees who request these accommodations.

Utah’s Policy in Action

In addition to passing legislation and enacting regulations, state health agencies and partners can further support breastfeeding in workplaces and schools by providing financial and technical assistance to employers to develop new, or improve existing, lactation accommodations policy and practices. With support from ASTHO and CDC, the Utah Department of Health and Human Services helped 32 employers improve workplace lactation accommodations for women earning low wages.

Specifically, they provided mini-grants and educational materials to employers to help them create new or improve existing workplace lactation accommodations policies, as well as rooms and other spaces for expressing and storing milk. To receive funds, employers must either have a lactation accommodations policy in place or commit to working with a local health department to receive technical assistance and develop a policy.

Utah also developed the Lactation Accommodation Policy Toolkit, which aims to educate state policymakers and employers about:

• Health and economic benefits of breastfeeding and supportive lactation accommodations.
• Importance of workplace lactation accommodations policies.
• Federal and state laws related to workplace lactation accommodations.
• Tips for creating lactation spaces, including recommendations regarding space design and items to include in lactation spaces.

The Toolkit also provides related resources, including a model lactation accommodations policy.

As Congress continues to debate workplace lactation accommodations at the national level, states may continue working to advance protections in the coming months by advancing legislation, enacting regulations, and supporting employers. ASTHO will continue to monitor and report on this important issue.