August is National Breastfeeding Month! What Educational Employers Should Know About Accommodating Lactating Employees and Students

08.14.2024

In recent years, federal and California governments have expanded the rights of lactating employees in the workplace. In recognition of the expanded rights and the designation of August as National Breastfeeding month, AALRR has prepared this Alert with a summary of the federal and state protections currently in place for lactating employees and students.[1]

Lactation Protections under Federal Law

The Consolidated Appropriations Act, 2023 amended the Fair Labor Standards Act of 1938 (“FLSA”) to add the PUMP Act. The PUMP Act expanded the coverage of lactating workers under federal law, requiring employers to provide a reasonable amount of break time, as well as space to workers who were not previously covered by federal lactation laws (i.e., salaried and hourly workers) for the purpose of expressing breast milk. Under the FLSA as amended by the PUMP Act, employers are required to provide “reasonable break time for an employee to express breast milk for such employee’s nursing a child for 1 year after the child’s birth each time such employee has need to express the milk.” (29 U.S.C. § 218d(a)(1).) A lactating employee must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” (29 U.S.C. § 218d(a)(2).) As discussed below, California law imposes additional requirements for providing appropriate space for lactation. The frequency and duration required for an employee’s lactation break depends on various factors related to the lactating employee, such as “the location of the space and the steps reasonably necessary to express breast milk, such as pump setup.” [2] The U.S. Department of Labor states “[a]n employer may not deny a covered employee a needed break to pump.”

Additionally, effective August 1, 2024, the 2024 Title IX Regulations prohibit discrimination against students, employees, or applicants, based on pregnancy or related conditions. As noted herein, federal and state guidance generally includes “lactation” as a pregnancy-related condition. The 2024 Title IX Regulations require educational institutions[3] to take actions to prevent sex discrimination and ensure equal access to its education program or activity, such as by providing reasonable break time for lactation for employees, and lactation space for students and employees.

Federal law recognizes state laws may provide greater protection for lactating employees. In essence, while federal law has recently expanded the rights of lactating employees, California laws remain more expansive in coverage for lactating employees.

Lactation Protections under California Law

California law provides protections for lactating employees under both the Government Code[4] and Labor Code. In general, a lactating employee has stronger protections under the Labor Code. Specifically, section 1030 provides:

Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has need to express milk. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.

(Emphasis added.)

Thus, the Labor Code expressly mandates an employer (including public school districts and community college districts) provide a lactating employee a lactation break with only limited exception. An employer is only “not required to provide break time” to a lactating employee “if to do so would seriously disrupt the operations of the employer.” (Cal. Lab. Code § 1032.)

There is no guidance under California law or case law specifying what a “reasonable amount of break time” is for a lactating employee. However, federal guidance from the Office of Women’s Health[5] advises that employers provide two to three breaks during an eight-hour workday for lactating employees. These breaks should be sufficient in length to provide the lactating employee time to walk to the designated space, wait for use of the space (if necessary), set up their pumping equipment, express milk, clean their equipment, and store the breast milk. Depending on the location of the pumping space, this may be approximately 30 minutes. As stated above, the amount of time necessary for a lactation break is subjective to each lactating employee. Employers should communicate with each lactating employee to assess and determine their individual needs when determining the duration of a lactation break.

While a lactating employee can utilize existing break time to pump, an employer must allow a lactating employee additional break time to pump if necessary. The additional break time beyond mandated break time is uncompensated if the employee is not expected to perform any work related tasks during that same time. The U.S. Department of Labor provides the following example:

Peyton is a third-grade teacher. Under the FLSA, Peyton is entitled to time to pump breast milk in a private space. Peyton chooses to grade papers and complete student records while pumping breast milk. Peyton must be compensated for the time spent pumping and doing this work at the same time.[6]

Per California law, an employer must provide employees with the use of a room or location to express breast milk in private. This room or location may be where the employee normally works. The room or location must be:

not be a bathroom;
be in close proximity to the employee’s work area;
be shielded from view;
be free from intrusion by others and from observation by technology (i.e., webcams, security cameras, etc.) while the employee is expressing milk;
be safe, clean, and free of toxic or hazardous materials;
contain a surface to place a breast pump and personal items;
contain a place to sit; and
have access to electricity or alternative devices including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.

An employer must also provide access to a sink with running water and a refrigerator or cooling device suitable for storing milk in close proximity to the employee’s workspace. The use of the room for lactation shall take precedence over other uses, but only for the time it is in use for lactation purposes.

If you have any questions about the contents of this Alert, or other questions regarding workplace accommodations for pregnancy or other related conditions, please contact the authors of this Alert or your AALRR attorney.

[1] We previously prepared multiple Alerts on expanded workplace protections for pregnant employees and employees with pregnancy related conditions. You can read those Alerts here:

https://www.aalrr.com/newsroom-alerts-3988

https://www.aalrr.com/newsroom-alerts-4006

https://www.aalrr.com/newsroom-alerts-4035

https://www.aalrr.com/newsroom-alerts-4046

[2] https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers

[3] Under Title IX, “educational institutions” are defined as: “a local educational agency (LEA) as defined by section 8101 of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (20 U.S.C. 7801(30)), a preschool, a private elementary or secondary school, or an applicant or recipient that is an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.” (34 C.F.R. § 106.2)

[4] See Cal. Gov. Code, § 12945.

[5]https://www.womenshealth.gov/supporting-nursing-moms-work/break-time-and-private-space/time-breaks

[6] https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers