Tag Archives: Breastfeeding

NEW LAW — New Jersey Law Against Discrimination Prohibits Discrimination Against Breastfeeding Employees

On January 8, 2018, New Jersey Governor Chris Christie signed A2294 into law.  This bill amends the New Jersey Law Against Discrimination (NJLAD) to include breastfeeding to the list of protected classes under the NJLAD.

With this amendment, which went into effect on January 8, 2018, employers are expressly prohibited from engaging in the following conduct:

  • Refusing to hire breastfeeding applicants;
  • Firing an employee because she is breastfeeding or otherwise discriminating against a breastfeeding employee in compensation and other terms, conditions, or privileges of employment; and
  • Treating female employees you know or should know are “affected by breastfeeding” less favorably (e.g. with respect to workplace accommodation and leave policies) than employees not so affected but similar in their ability or inability to work.

In addition to the foregoing, employers are required to provide breastfeeding employees with reasonable accommodation, including a reasonable break time each day and a private location near the work area (but not a toilet stall) for the employee to express breast milk for her child – unless the employer can demonstrate that providing the accommodation would impose an “undue hardship” on the business.

Under the NJLAD, whether an accommodation is considered an undue hardship is determined by the following factors:

  • The overall size of your business with respect to the number of employees, number and type of facilities, and size of the budget;
  • The type of your operations, including the composition and structure of your workforce;
  • The nature and cost of the accommodation, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
  • The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

This is a high standard to meet.

Take home for employers

Since this law went into immediate effect, New Jersey employers should verify that their current employment policies and practices relating to breastfeeding employees are compliant with the new law.

NEW Law – San Francisco Expands Protections for Nursing Mothers

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance”. This new law expands the protections provided to nursing mothers under California (and federal law) for nursing mothers employed within the “geographic boundaries” of San Francisco.

What’s required under California and federal law?

The California Labor Code requires employers to provide employees who are nursing mothers with a private location and a reasonable amount of time to express breast milk during the workday. The private location cannot be a bathroom and it must be shielded from view and free from intrusion. Employers are also required to make a reasonable effort to provide a private, secure, and sanitary room or other location where an employee can express her breast milk that is in close proximity to the employee’s work area.

The Fair Labor Standards Act requires employers to provide employees who are nursing mothers with “reasonable break time” to express breast milk during the workday for at least one year after the child’s birth. Like California law, the FLSA requires employers provide a private location that is not a bathroom for this purpose.

What does the Ordinance require?

The Ordinance requires that employers provide a “lactation location” that:

  • Is safe, clean, and free of toxic or hazardous materials;
  • Contains a surface upon which to place the breast pump and personal items;
  • Contains a place to sit; and
  • Has access to electricity.

In addition, the employer must provide the employee with access to a sink with running water and a refrigerator that is in close proximity to the employee’s workspace. Finally, if a “multi-purpose room” is used also for lactation, the use of the room for lactation takes precedence over other uses.

In addition, employers must also implement a lactation policy that meets the following requirements:

  • The policy must include a statement about the employee’s right to request a lactation accommodation and the process for requesting an accommodation.
  • The policy must be included in the employee handbook.
  • The policy must be distributed to
    • New employees upon hiring and
    • When an employee inquires about or requests parental leave.

Employers must respond to an employee’s request for a lactation accommodation within 5 business days of receipt of the request and, if the employer cannot provide break time and/or a location that is compliant with the ordinance, the response must be in writing.

Employers must also maintain a written record of these requests for 3 years from the date of the request.

Recommended action for employers

The new ordinance goes into effect on January 1, 2018. It is recommended that all San Francisco employers review these requirements and verify that they are able to comply with these new requirements.