Many women who initially choose to breastfeed their child do not continue to do so after six months. According to the Centers for Disease Control and Prevention, approximately 70 percent of mothers start breastfeeding immediately after birth, but less than 20 percent of those mothers are breastfeeding exclusively six months later. This can be attributed in part to difficulties with breastfeeding in public due to the lack of private areas and disapproving looks and comments. Many women may also find it difficult to breastfeed after returning to work. Unfortunately, many nursing mothers do not have supportive employers.
Federal Legal Protections for Breastfeeding Mothers
Federal laws are in place to make it easier for many women who want to continue breastfeeding to take lactation breaks at work. The Patient Protection and Affordable Care Act (“ACA”) contained an important provision for nursing mothers, which took effect when the ACA was signed into law by President Obama on March 23, 2010. Section 4207 of the ACA, known as The Nursing Mother Amendment, amends Section 7 of the Fair Labor Standards Act (FLSA) to require some employers to provide lactation breaks and facilities for employees who are breastfeeding.
Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The term “reasonable break time” is not defined, but the length and frequency of a nursing mother’s lactation breaks could vary based on the needs of the employee’s baby and the logistics of the space provided. The one year requirement is consistent with the American Academy of Pediatrics’ recommendations on breastfeeding.
Employers must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express milk.” There are a variety of possible accommodations for expressing breast milk, such as constructing a new room, converting an unused office space, closet, or storage area, or partitioning off a small corner of a room.
Generally, all employers that are covered by the FLSA must comply. An employer with less than 50 employees is not required to provide these breaks “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” All employees who work for the employer, regardless of their work site, are counted when determining whether this exemption may apply.
The pertinent section of the ACA only applies to “nonexempt” employees who are not exempt from the FLSA’s overtime pay requirements. Employers are not required to provide breaks to nursing mothers who are “exempt” from the overtime pay requirements of Section 7, which exempts white-collar employees or certain employees within particular industries or that hold specific positions.
Employers are not required to compensate nursing mothers for the break time taken. However, where employers already provide compensated breaks, a nursing employee should be compensated, in the same way, that other employees are compensated for break time. In addition, nursing mothers must be completely relieved from duty during the break or the time must be compensated as work time. Moreover, there are existing federal regulations that indicate “rest periods of short duration, running from 5 minutes to about 20 minutes are common in the industry . . . [and] must be counted as hours worked.” (C.F.R. Section 785.18). Whether lactation breaks will be treated differently has not been clarified.
Because the law requires only unpaid breaks and facilities, it is currently unclear what remedies are available for employees whose employers do not comply with these federal requirements. Although employees cannot sue for ACA violations directly, the U.S. Department of Labor has the ability to investigate any complaints and can file suit to enforce the law. Since the ACA’s breastfeeding provision, there have also been a growing number of lactation discrimination and retaliation lawsuits highlighting the need for employers to accommodate nursing mothers in the workplace. North Carolina courts have not yet ruled on such a case, but the results from other courts have varied. Courts have recognized claims against employers who retaliate against an employee who complains of her employer’s violation of the ACA’s lactation requirements by firing or taking some other adverse action against the employee. Some courts have held that lactation at work is not protected by federal laws prohibiting sex and pregnancy discrimination. Other courts have disagreed and held that lactation is a result of pregnancy and, therefore, nursing mothers are protected under sex discrimination laws.
The FLSA break time requirement does not preempt State laws that provide greater protections to employees. Many states have passed laws requiring additional protections, such as compensated break time, breaks beyond one year after the child’s birth, and protecting nursing mothers from discrimination and retaliation. Unfortunately, North Carolina is not one of those states. North Carolina is one of four states with no laws of its own protecting pregnant or breastfeeding employees.
Breastfeeding and the Law in North Carolina
North Carolina does have a general breastfeeding provision in its indecent exposure law, N.C. General Statutes Section 14-190.9. The indecent exposure law states that a woman is allowed to breastfeed in any public or private location where she is otherwise authorized to be, even if the nipple of her breast is exposed.
This North Carolina law essentially gives mothers a “right to breastfeed” without a means of enforcement. Mothers who are breastfeeding in public are protected from being arrested for indecent exposure. It also technically prohibits a restaurant, store, or other facility from asking a woman who is breastfeeding a baby to leave, cover their feeding baby, or feed their baby in the bathroom. However, the law does not include a statutory enforcement provision, such as the right to file a civil lawsuit. It is therefore unclear what remedies, if any, are available for violation of the law.
Other states have passed similar laws that do provide remedies for enforcement. Perhaps North Carolina will follow their lead and change the law so that those who discriminate against breastfeeding mothers can be held accountable for their practices. In the meantime, some women who feel they have been discriminated against have chosen to pursue non-legal avenues such as contacting the media, boycotting the businesses, or organizing a nurse-in.
Breastfeeding protections are good for mothers, children, their families, and the national economy were working women play a critical role in today’s workforce. Whether breastfeeding advocates pursue non-legal avenues or nursing mothers who are fired after trying to breastfeed at work hire a lawyer, there will hopefully be changes in North Carolina in the future.