Workplace Breastfeeding Laws

Moms in all 50 states have the legal right to breastfeed in public, and hourly employees who breastfeed are protected under the federal Fair Labor Standards Act (FLSA). Additionally, many states offer enhanced protections to further support nursing mothers. The following does not and is not intended to constitute legal advice. We express no opinion as to any federal, state or local laws. Please consult your attorney for your obligations under existing and proposed laws that affect or may affect you.
Federal
By State

Federal Breastfeeding Laws

The Fair Labor Standards Act of 1938 (“FLSA”) (1)

To Whom Does It Apply? (2)

Under the FLSA, workplace protections generally extend to all persons who may be categorized as “covered” employees. An employee may be “covered” based on either: (i) the nature of the employer’s business (“Enterprise Coverage”), or (ii) the employee’s individual work for the employer (“Individual Coverage”).

Enterprise Coverage is established if an employer:

  • (1) Has annual gross sales or a volume of business of at least $500,000 and has employees engaged in: commerce, the production of goods for commerce, or the handling, selling, or working on of goods that have been moved in, or produced for, commerce;
  • (2) Is engaged in the operation of: a hospital or similar care facility or an educational institution (in each instance, irrespective of whether the enterprise is public, private, for-profit, or not- for-profit); or
  • (3) Is a federal, state, or local government agency. 

If Enterprise Coverage is established, the FLSA shall generally apply to all employees of the employer. (3)

Individual Coverage is established if an employee’s individual work for the employer requires the employee to engage in interstate commerce or the production of goods for interstate commerce. Examples of “engaging in interstate commerce” include but are not limited to: producing goods to be sold in another state, regular telephone communications with persons located in other states, and engagement in interstate transactions, either directly thorough the work of the employer, or indirectly if the employer provides services to businesses engaged in interstate commerce. If Individual Coverage is established, the FLSA shall apply to each employee who is able to meet the Individual Coverage qualifications. The establishment of Individual Coverage does obligate the employer to extend FLSA workplace protections to employees who are not so qualified.

Exempt Employers (4)

Under the Breastfeeding Accommodations in the Workplace provision of the FLSA, an employer with less
than 50 employees is not required to comply with the statute if compliance would result in “undue hardship”
to the business. “Undue hardship” is determined by examining the difficulty or expense of compliance in
relation to the size, financial resources, nature, or structure of the employer’s business. Further, the
Breastfeeding Accommodations in the Workplace provision provides limited exemptions for employers
who are categorized as air carriers, rail carriers, or motorcoach service operators.

Work Break Requirements



Under the FLSA, an employer must provide reasonable break time for an employee to express breast milk
for their nursing child for 1 year after the child’s birth each time such employee has need to express milk. An
employer is not required to provide paid break time for the expression of breast milk, provided, however,
that the lactation break will be considered “working hours”, and will be compensated accordingly, if the
employee is not wholly relieved from duty for the entirety of the break, and provided further, that short
breaks provided by the employer (usually 20 minutes or less) must be counted as hours worked. (5) 


Lactation Space Requirements


The FLSA requires a private space for lactation that is not a bathroom. The private space must be designed
so people cannot see or disrupt an employee while they are pumping. In most cases, this means that there
must be a lock on the door. 


The lactation space must contain a place for the employee to sit and a flat surface, other than the floor, on
which to place the pump. The Department of Labor encourages employers to include access to electricity in
the lactation space and access to a sink near or in the lactation space. 
The worksite must have a space to safely store expressed breast milk while at work (such as in an insulated
contained, a refrigerator or a personal cooler), but the storage space does not have to be located within the
lactation space. 


Nothing in this subsection shall preempt a State law that provides greater protections to employees than the
protections provided for under this subsection.

The Pregnant Workers Fairness Act (“PWFA”)

To Whom Does It Apply?



The PWFA is another federal statute that protects the rights of nursing mothers in the workplace. The PWFA
categorizes employers more broadly than the FLSA, which extends workplace accommodation protections
to some workers who do not qualify for protections under the FLSA. Under the PWFA, additional
workplace protections are extended to all employees, applicants, and former employees of “covered
entities,” regardless of how long such employees have worked for the covered entity. Covered entities
include: public or private employers with 15 or more employees, unions, employment agencies, and the
Federal Government. 

Work Break Requirements

Under the PWFA, an employer must provide reasonable break time for an employee to express breast milk
for their nursing child, in the same manner and with the same frequency as required, or as would be required,
by the FLSA. 

Lactation Space Requirements



Under the PWFA, an employer must provide a private space for lactation that is not a bathroom. At a
minimum, the lactation space must:

  • (1) Be within reasonable proximity to the employee’s usual work area (as required, or as
would be required, under the FLSA);
  • (2) Be within reasonable proximity to a sink, running water, and a refrigerator (as
recommended but not required under the FLSA);
  • (3) Be located out of view and free from intrusion by others and may not be a bathroom (as
required, or as would be required, under the FLSA);
  • (4) Be cleaned regularly (not required under the FLSA)
  • (5) Contain electricity (recommended but not required under the FLSA);
  • (6) Contain appropriate seating and a surface for placing a breast pump (as required, or as
would be required, under the FLSA).

Exempt Employers



Under the PWFA, an employer who is otherwise required to comply with the Act will not be required to
comply if the employer can demonstrate that compliance would result in “undue hardship” to the business.
In determining whether an employer would experience “undue hardship” by their compliance with the
PWFA, factors to be considered include: 

  • (1) The nature and net cost of the accommodation needed under the PWFA;
  • (2) The overall financial resources of the facility or facilities involved in the provision of the
reasonable accommodation, the number of persons employed at such facility, and the effect
on expenses and resources;
  • (3) The overall financial resources of the covered entity, the overall size of the business of the
covered entity with respect to the number of its employees, and the number, type, and
location of its facilities;
  • (4) The type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity, and the geographic separateness
and administrative or fiscal relationship of the facility or facilities in question to the
covered entity; and
  • (5) The impact of the accommodation upon the operation of the facility, including the impact
on the ability of other employees to perform their duties and the impact on the facility's
ability to conduct business
  1. Note that the FLSA provides workplace protections to various classes of protected employees, not just working moms. The breastfeeding accommodation section of the FLSA is sometimes referred to as the “PUMP Act”, in reference to the 2022 bill that expanded protections for nursing mothers by revising §218(d) of the FLSA. Both titles, “the FLSA” and the “PUMP Act”, are correct when referencing federal workplace protections.
  2. Please note that the information provided hereunder does not, and is not intended to, constitute legal advice; instead, all information, content, and materials contained in this document are for general informational purposes only. Please consult with your legal counsel or an employment law expert to assess your company’s obligations under applicable federal, state, and local laws and regulations.
  3. Barring applicable employee exemptions set forth in the FLSA.
  4. Please note that this section describes the employer exemptions that are specifically delineated under the Section 218(d) of the FLSA. The FLSA statute includes various additional employer / employee exemptions that are beyond the scope of this general information sheet.
  5. For more information on work break requirements, see the United State Department of Labor Wage and Hour
Division Field Assistance Bulletin No. 2023-02 concerning Enforcement of Protections for Employees to Pump Breast
Milk at Work (FIELD ASSISTANCE BULLETIN No. 2023-02 (dol.gov))

Updated as of: 08.01.2024

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