THE BLOG
08/14/2014 03:44 pm ET | Updated Oct 14, 2014

What the Law Says About Pumping Breast Milk at Work

If you're breastfeeding your child, do you have a right to pump milk at work? Under federal law, the answer is a rather complicated "maybe."

Although many workplaces now provide lactation rooms and staggered breaks for breastfeeding mothers, they're often doing so voluntarily as a good business practice to help retain female employees and not as a matter of law. And a good business practice it is. For the first time, women constitute more than half of the workforce and the fastest growing segment is women with children under the age of three.

The Affordable Care Act, the 2010 law you may know better as "Obamacare," requires employers to allow women to pump breast milk while they are at work. (It's in section 4207 for anyone brave enough to hunt it down.) But like many federal regulations covering American workers, it's shot through with loopholes.

Since August is National Breastfeeding Awareness Month, here are some things to know about pumping at work.

First, the good news. If you're covered under the law, your employer must provide a "reasonable break time" to pump milk each time you need to during the day. (Typically, every few hours.) That includes any time you would need to retrieve and use any type of breast pump.

You also must be given a private space that is not a bathroom where you won't be bothered by coworkers or customers. (It doesn't necessarily have to be a dedicated lactation room, however.)
Now the bad news.

Your breast-pumping time doesn't have to be paid, unless your coworkers also get paid breaks. And not everyone is covered by the new law.

For starters, employers only have to meet the requirement if they have 50 or more employees. But as it turns out, only three percent of America's small businesses (defined as those with fewer than 500 workers) fit that definition in 2010.

A company with fewer than 50 employees must comply with the law unless it can prove that it would be an "undue hardship" to do so. The Department of Labor has made it clear that this standard is a very high hurdle to meet.

Also, only those women who are "non-exempt" under the Fair Labor Standards Act (FLSA) are covered. The FLSA is a complicated law, but non-exempt employees are generally hourly workers who must be paid overtime. If you make more than $455 a week and have any supervisory responsibility, you are may be exempt and therefore not covered by the breastfeeding law. If you are unsure, it's worth checking with your friendly neighborhood employment attorney.

This big loophole leaves out a lot of breastfeeding mothers.

The legal system has provided a little more protection, though it's indirect at best. Some courts have said that employers cannot discriminate against employees for breastfeeding. That means that your boss could not fire you for taking a break to pump milk while allowing a male coworker to take a similar break to smoke a cigarette.

Still, lawsuits are a much more unwieldy way of encouraging employers to act responsibly than regulations.

In a perfect world, your boss would be understanding and accommodate your needs during those few months when you're pumping milk. After all, few people dispute the benefits of breastfeeding for babies. It's healthier than formula, not to mention cheaper. Breastfeeding has even been found to reduce the costs of government programs like supplemental nutrition for Women, Infants and Children, or WIC.

Unfortunately, not all bosses see it that way.

Take the recent case of Ames vs. Nationwide Insurance. Angela Ames, who had worked as a loss mitigation specialist for six years, returned to her job after the birth of her second child. A supervisor had told her she could use a lactation room when she came back.

But on the first day back, her boss told her it was not her responsibility to help her get access to it and sent her to the company nurse. The nurse, in turn, said Ames had not filed the proper paperwork to get a badge to access the lactation room.

In tears, Ames returned to her boss to ask for help finding a place to pump. Her child was feeding every three hours, which meant that Ames was now in pain. Instead of helping, her boss handed her a pen and paper and dictated a resignation letter for her to sign. So she did.

Ames sued under a federal law known as the Pregnancy Discrimination Act. She may not have raised the new breastfeeding law because she was exempt from its requirements. As it turned out, the court never heard her complaint, kicking her case out because she had quit. Ames argued that she was forced to quit, but the court found that she had other options, such as complaining to Human Resources.
That's an important lesson here for breastfeeding mothers -- or anyone facing an employment problem -- and that is don't quit. In these situations, it's better to be fired.

It would be even better if employers never fired anyone for something as natural and beneficial as breastfeeding.

Tom Spiggle is author of "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace" which will hit shelves later this summer. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. This is Spiggle's first book. To learn more, visit: www.yourepregnantyourefired.com.