How Are Employer’s Obligated to Accommodate Employees Who Are Also Nursing Mothers?

Effective January 8, 2018, the New Jersey Law Against Discrimination (“NJLAD”) was amended to include breastfeeding as a protected category. Under the amended law, employers must provide nursing mothers with reasonable breaks during the work day and a suitable private location close to the employee’s work area to express milk for her infant child. The only exception to this requirement to accommodate is when doing so would place an undue hardship on the employer’s business. When considering whether or not an undue hardship exists, the court will look to the following factors:

• The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of the budget;
• The type of the employer’s operations, including the composition and structure of the workplace;
• The nature and cost of the accommodation, considering 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.

Under this new law, it is also unlawful for an employer to discriminate or retaliate against an applicant or employee because that employee is breastfeeding and/or has requested an accommodation to breastfeed.

It is important to note that New Jersey’s law protecting breastfeeding provides broader protection than that of its Federal counterpart. For example, under the Fair Labor Standards Act (“FLSA”), the requirement to provide accommodations to nursing mothers only applies to non-exempt employees for one year following the birth of the child. In contrast, in New Jersey, the requirement to provide an accommodation to nursing mothers applies to all employees, regardless of an employee’s classification. Moreover, New Jersey does not limit the need to accommodate to the first year following the child’s birth. As long as the mother is nursing her child, the need to accommodate is required of the employer.

Solution: Employers Should Update Their Discrimination Policies to Include Breastfeeding.

Employers should update their policies to include breastfeeding as a protected class. The policies should provide that any disabled or pregnant employee who feels they are in need of a workplace accommodation should make a request, preferably in writing, to his/her supervisor or the Human Resources Department. Employees should be aware that they may need to submit an appropriate medical certification to substantiate the need for accommodation. It is critical that managers are trained on how to respond to workplace accommodations for breastfeeding, specifically employers should engage in a dialogue with affected employees concerning the most appropriate space to allow the employee to express milk for her child. In doing so, employees will often request that they be provided with a room that locks in order to ensure privacy and avoid interruptions. Although the NJLAD is silent on this issue, it is an employer best practice recommendation to provide a room that locks and is protected from outside view, unless doing so would create an undue hardship. Employees may also seek the availability of an electrical outlet in the room and comfortable seating. Some employers have even gone so far as to provide storage and shipment of breast milk to the employee’s home if the employee is required to travel for her job.

In addition to training managers on how to appropriately respond to workplace accommodations, employers should also clearly communicate expectations for the use and privacy of the space to all employees, not just breastfeeding mothers. Policies should also be updated to state that employers are prohibited from taking adverse action or otherwise retaliating against a worker for requesting or making use of an accommodation relating to breastfeeding or expressing milk in the workplace.

If you have any questions regarding this new law and/or updating your policy, please contact our office directly. Thank you.