Lactation Accommodation Handbook Statement

Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler

When to Include This Statement

Employers subject to the Fair Labor Standards Act (FLSA) should include this statement in their handbook, with the limited exception that employers with fewer than 50 employees do not need to provide this accommodation if it would impose an undue hardship by causing the employer significant difficulty or expense. All employees who work for the covered employer, regardless of worksite, are counted when determining the 50-employee threshold.

Most employers are likely covered by the FLSA. To be covered under the FLSA employers must be an enterprise engaged in interstate commerce with annual gross sales of $500,000 or more.

Employers are "engaged in interstate commerce" if they have employees handle, sell or otherwise work on goods or materials that have been moved in or produced for interstate commerce.

Certain employers are covered regardless of their dollar volume (e.g., a hospital, and institutions primarily engaged in the care of the sick, aged or mentally ill). In addition, employers of other employees who do not meet the gross sales threshold may still be covered in any workweek in which the employees are individually engaged in interstate commerce, production of goods for interstate commerce, or an activity closely related or directly essential to the production of such goods.

Customizable Handbook Statement

Lactation Accommodation

The Company will provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. Employees needing breaks for lactation purposes may use ordinary paid rest breaks or may take other reasonable break time when needed. If possible, the lactation break time should run concurrently with scheduled meal and rest breaks already provided to the employee. If the lactation break time cannot run concurrently with meal and rest breaks already provided or additional time is needed for the employee, the lactation break time will be unpaid for nonexempt employees.

Employees will be relieved of all work-related duties during any unpaid break. Where unpaid breaks or additional time are required, employees should work with their supervisor [or insert name/contact details for appropriate company representative or department] regarding scheduling and reporting the extra break time. Where state law imposes more specific requirements regarding the break time or lactation accommodation, the Company will comply with those requirements.

Because exempt employees receive their full salary during weeks in which they work, all exempt employees who need lactation accommodation breaks do not need to report any extra break time as "unpaid."

The Company will provide employees with the use of a room or a private area, other than a bathroom or toilet stall, that is shielded from view and free from intrusion from co-workers and the public. The Company will make a reasonable effort to identify a location within close proximity to the work area for the employee to express milk. This location may be the employee's private office, if applicable.

The Company will otherwise treat lactation as a pregnancy-related medical condition and address lactation-related needs in the same manner that it addresses other non-incapacitating medical conditions, including requested time off for medical appointments, requested changes in schedules and other requested accommodations.

Employees should discuss with [insert name/contact details for appropriate company representative or department] the location for storage of expressed milk. In addition, employees should contact [insert name/contact details for appropriate company representative or department] during their pregnancy or before their return to work to identify the need for a lactation area.

Guidance for Employers

  • The Fair Labor Standards Act (FLSA) requires that covered employers provide a place (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public for the employee to express breast milk.
  • Employers must provide a reasonable break time to accommodate an employee each time she has the need to express breast milk for her infant child. Breaks must be provided for at least one year after the child's birth.
  • Employers are not required to compensate an employee receiving reasonable break time for any work time spent breastfeeding the child. However, there have not been regulations issued on what should be considered "reasonable" break time, and employers should take care to comply with federal and state law regarding compensability of meal and rest breaks.
  • Employers with fewer than 50 employees are not required to comply with the lactation accommodation and break requirements if doing so "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 covered employer, regardless of work site, are counted when determining the 50-employee threshold.
  • Be aware that the "undue hardship" standard under other laws has been interpreted as a high burden for the employer to meet. Before deciding to not provide an accommodation on this basis, consult with legal counsel.
  • The lactation accommodation requirement under federal law was added to the FLSA's overtime provision, meaning the provision does not apply to overtime-exempt employees. Although not required to by federal law, many employers choose to provide lactation accommodation to both exempt and nonexempt employees. Exempt employees may also be entitled to lactation accommodation under certain state laws. This policy statement provided assumes that the employer will be offering the accommodation to both nonexempt and exempt employees.
  • When providing a lactation accommodation to exempt employees, do not make deductions from salaries for lactation breaks. Exempt employees generally must receive their full salary for any week in which they perform work, regardless of the quantity of work they provide.
  • Some employers have difficulty providing a space that meets the legal requirements. For advice on providing adequate space, consult legal counsel.
  • The FLSA provides anti-retaliation protections to employees who come forward with complaints, institute proceedings or participate in proceedings related to the FLSA.
  • At least one federal court has held that terminating a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.
  • Ensure compliance with state laws regarding lactation accommodation. For example, some states require accommodation for longer than one year following the birth of the employee's child. There are also some state law provisions regarding storage of breast milk.
  • Employers can consider implementing a system for tracking the use of lactation areas to account for an employee's time actually spent on break and for scheduling room usage to avoid multiple people needing to use the area at the same time.

Additional Resources

Breastfeeding Break Requirements by State