THE BLOG
12/04/2016 12:50 pm ET Updated Dec 05, 2017

Legal Protections For Nursing Moms Are On The Chopping Block

Late last week millions of working moms were ready to celebrate as a new federal regulation that would have increased their pay and provided additional rights to pump breastmilk at work was slated to go into effect. But the regulation was put on hold at the eleventh hour by a federal judge in Texas, leaving many scrambling to understand what happened. Sadly, this delay could be just the first a series of setbacks nursing mothers face over the next four years.

As we previously wrote, in May 2016 the Department of Labor published a new rule expanding coverage of the nation's overtime laws. As a result of the rule, millions more working moms would have been eligible to receive either additional overtime compensation or a higher salary. The expansion would have also made it easier for millions more women to continue breastfeeding after returning to work following childbirth, by expanding coverage of the requirement that employers provide reasonable break time and a private space (other than a bathroom) to pump breastmilk. Although many employers have already made changes to their policies to comply with the new rule, the legal requirement for them to do so is now in a legal limbo.

The judge's ruling to postpone the new regulation was part of a lawsuit filed by business groups and states who oppose the overtime expansion and claim that the Department of Labor exceeded its authority by issuing it. Until the court can reach its final decision on these claims, the federal judge's order temporarily suspends the expansion from going into effect. The reasoning the judge provided in his temporary order suggests that he will ultimately rule against the expansion.

Although the federal judge in Texas has the authority to issue a nationwide ruling, he doesn't have the final word. Just yesterday the Department of Labor appealed the judge's decision to the Fifth Circuit Court of Appeals. Eventually, it could also appeal the judge's final decision in the case, possibly all the way to the Supreme Court. The rub though, is that come January 20, the Departments of Labor and Justice - the federal agencies that would have to fight for the overtime expansion in court - will have a new boss. And we have good reason to think President-elect Trump, who believes wages are already too high, would abandon the new protections.

We're not without hope. The Department's new rule - in our legal opinion - is on more-than-solid ground and is no different than the many previous expansions that were successfully made since the first rule was issued in 1938, including most recently under George W. Bush. It is possible the rule could survive even without the Trump administration's blessing. Polling suggests the majority of Americans, people of all political persuasions, support the expansion of overtime. And even business groups that oppose the current rule have said that a more limited expansion would be acceptable. It's possible that the rule in its current form, or at least a modified version, will be implemented. It's too soon to tell. But for now millions of working moms will not see the increase in pay or breastfeeding freedoms they were counting on.

Following the election, too many moms are living with uncertainty. The Affordable Care Act, which Trump promised to repeal, provides critical access to healthcare for mothers, mothers-to-be, and their children. The law also includes a number of provisions to support breastfeeding as a preventive health measure that we know can save lives and billions of dollars. Under the Affordable Care Act, insurance companies must provide lactation support and consultation - something they were not required to do before the law went into effect. Expert consultants can provide often-critical support to women in learning how to breastfeed, selecting and using a pump, and troubleshooting common feeding challenges. The Affordable Care Act also mandates that insurance companies cover the cost of breast pumps, which can be expensive and are usually necessary for breastfeeding women to maintain their milk supply after returning to work.

The ability to pump at work is essential for nursing mothers who are compelled to return to work early in the absence of paid maternity leave. Although paid leave has widespread public support and is provided by every other industrialized nation in the world, the likelihood of seeing a federal paid leave law in the next four years seems slim. Without paid leave that allows women to take time off of work, or protections to help women breastfeed at work, moms are in an impossible position. Return to work and inhospitable work environments are commonly cited as reasons why women stop breastfeeding early, and moms are too often forced to choose between breastfeeding their babies and earning an income for their families.

What's next for nursing moms? The picture is not as rosy as we'd like. Although a Democratic filibuster or strong public outcry may be able to prevent a full repeal of the Affordable Care Act, all of these protections are at stake as the incoming administration threatens to repeal the law. It is up to women to advocate to save those pieces that most impact their lives. It is also up to all of us to find ways to increase state and local legal protections for nursing moms. States can pass their own laws to ensure that breastfeeding at work is protected and that new moms get paid time off from work. Some states have already done so, as a result of the relentless advocacy of local groups of concerned mothers and allies. Now seems like a good time to ramp up the fight to ensure nursing moms can count on these basic protections.