By Jack Tuckner, Esq.
After your maternity leave, when you are returning to work and you are lactating, your company must provide a private, clean space nearby, for your convenience, during a brief break time – not a bathroom, in which you can express milk for your baby. But your employer does not have to provide that space if it has less than 50 employees at least under the federal law, the Affordable Care Act, since 2010.
So, if your company has at least 50 employees, you are covered for up to a year after your baby is born, you are permitted, and they are required to create, make this space for you to express milk and continue lactating during working hours. Unpaid time, but they can’t discriminate and they must permit you to do so. If your employer does not have 50 employees, approximately half of the states in the United States have their own lactation laws such as in New York, and Connecticut, where I practice law – both of those laws go farther than the federal law in protecting women who are lactating.
For instance in New York, all employers are covered, even if you are the only employee in the company, your employer must provide that space – clean, convenient, non-bathroom, lactation space for you, and they must do so for up to three years following the birth of your child. And if your employer isn’t covered under your states law, and it doesn’t have 50 employees, you’d still be covered if your employer has at least 15 employees under the Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964, because it’s sex discrimination. Because lactation is a pregnancy-related medical condition, that your employer must reasonably accommodate, and it certainly cannot discriminate against you in any respect because of your lactation, or your request to express milk in the workplace.
And finally, even if your employer doesn’t have 50 employees, and you’re not covered by a state lactation law, it is sex discrimination, period, if your employer doesn’t permit you to express milk during a break time, when it permits other employees to take care of other personal issues during their break time, which it undoubtedly does. So the upshot is once you return to work you are entitled by law to express milk, and if your employer doesn’t allow it, or says it doesn’t know anything about it, it is violating the law, because it is sex discrimination and pregnancy discrimination.