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Tuesday, February 13, 2018

Must My Employer Allow Me to Pump Milk at Work? Accommodations for Breastfeeding Employees

New Jersey breastfeeding employees gained new legal protection from job discrimination under state legislation signed into law which expanded the classes of persons protected from discrimination. This Article updates the December 2017 article on breastfeeding mothers at work.

First introduced in 2016, this legislation was signed into law in January 2018. It amended the New Jersey Law against Discrimination (NJLAD) specifically adding “breastfeeding” as a protected class under the law prohibiting discrimination. Those who now breastfeed and pregnant employees who anticipate returning to work after giving birth and contemplate breastfeeding now are on par with other protected classes. It has been long argued that requesting an accommodation was already appropriate under the NJLAD because breastfeeding is a medical condition related to pregnancy. However, with the wording of the new amendments, there can be no doubt that “breastfeeding” is now a specific class on par with other classes where discrimination based on that class is prohibited. Breastfeeding is now on par with the classes of race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.

What Are Reasonable Accommodations at Work for Women Who Breastfeed?

New Jersey employers must make accommodations to allow women to breastfeed or express or pump breast milk during the work day. Under the new amendments to the NJLAD, in the case of a employee breastfeeding her infant child, the accommodations shall include:

• Reasonable break time each day for the employee to pump or express milk

• Providing a suitable room or other location with privacy, but it cannot be a toilet stall

• The suitable room or other location with privacy must be close proximity to the work area for the employee to express breast milk for the child

The employer shall not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using the accommodation. The statute allows for exemptions only when the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.

Can I Be Paid for Breastfeeding Breaks?

These new breastfeeding amendments do not alter any employee's rights under law to paid or unpaid leave in connection with pregnancy or breastfeeding. The employee is on par with other breaks given by the employer. The employer does not have to pay the employee for the breaks to pump or express milk, but if the employer allows for paid breaks, paid breaks can be used by the employee to pump milk, even when more unpaid break time is required by the employee to properly express or pump milk.

Under the new amendments to § 10:5-12 for legal protection to employees who breastfeed, the statute also mandates under subsection (s) the following:

(s) For an employer to treat, for employment-related purposes, a woman employee that the employer knows, or should know, is affected by pregnancy or breastfeeding in a manner less favorable than the treatment of other persons not affected by pregnancy or breastfeeding but similar in their ability or inability to work.

Unlike the Federal Law which gives some protections to breastfeeding mothers but requires that the employer have 50 or more employees to be covered by the law, the NJLAD applies to all employers, private and public regardless of the number of employees.

Drum Roll: The new NJLAD amendments specifically adding “breastfeeding” to its list of protected classes; § 10:5-12 in part now states: § 10:5-12. Unlawful employment practices, discrimination It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire, ......or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

If Your Employer Will Not Accommodate Pumping Milk at Work.

If you are thinking simply resigning because your employer told you that you are not allowed, or will not be allowed, breaks to pump, you should contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing pregnant women, disabled women, women on FMLA leave and related issues. If you are being denied break time at work to pump milk, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination. If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout southern and northern New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.


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