Making sense of legal jargon can be difficult for anyone—and even more so if you’re operating on three-hour increments of sleep and are simultaneously figuring out how to keep a tiny human alive. This is how I found myself furiously Googling pumping-at-work laws during a middle-of-the-night feeding shortly after I returned from maternity leave.
Long story short, due to an office downsizing the empty office that had initially been designated as a mother’s room was no longer available, so the company was forced to create a makeshift pumping room in our new, more cramped open office plan. As ideas were batted around (a partially glass-walled shared conference room, a room on the other side of the building, and a supply closet—which ended up being the winner, by the way), I started to wonder what exactly I was entitled to, and so I began to cobble together as much knowledge as I could about lactation laws.
In an attempt to spare fellow nursing parents the endless Google pursuit, let’s break down what the law says about pumping at work and how you can best advocate for yourself, according to experts.
What Laws Are in Place to Support Nursing Mothers at Work?
Your primary protection comes by way of the Reasonable Break Time for Nursing Mothers provision, which was passed in 2010 as part of the Affordable Care Act. This law provides covered employees with the right to time and a private space to pump at work during the first year of their child’s life.
Who Does the Law Apply To?
The biggest misconception about the Reasonable Break Time for Nursing Mothers provision is that it only applies to large companies. The law actually applies to all employers, whether you’re working at a juggernaut of a corporation or an itty-bitty early-stage startup. The caveat that confuses people is that companies with fewer than 50 employees could technically be off the hook for complying if they can prove that providing break time and accommodations would create an “undue hardship.”
However, experts are quick to point out that these scenarios are unlikely. “Given how typically easy it is to provide break time and space, cases where there is a true undue hardship are going to be rare,” says Liz Morris, Deputy Director of the Center for WorkLife Law at UC Hastings College of the Law.
A significant undue hardship implies that accommodating a lactating employee would cause the employer significant expense or construction, according to Cheryl Lebedevitch, Senior Workplace Program Manager & Policy Analyst at the United States Breastfeeding Committee (USBC). “It’s a high bar to prove, especially because simple, inexpensive solutions have been implemented in every industry,” she says.
Simple, inexpensive solutions have been implemented in every industry.
However, there is a loophole in the law due to a technicality, which leaves many breastfeeding employees unprotected. The Break Time for Nursing Mothers provision is placed within the Federal Labor Standards Act’s overtime section, so it only really applies to non-exempt employees. In other words, it covers most hourly workers, but not salaried workers.
“This was an unintentional oversight in the passage of the law,” Morris says. “Unfortunately the result is that nine million women of childbearing age are left out of the law’s protections, including teachers and many registered nurses.”
As a result, there have been efforts to remedy this oversight with a federal law that would cover salaried, exempt employees.
What if I’m Not Covered by the Federal Break Time Provision?
There are a couple of additional safety nets that support nursing parents. The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, provides additional protections at the federal level by saying that discrimination based on pregnancy, childbirth, or related medical conditions is sex discrimination. In other words, it makes it illegal to fire an employee because she is breastfeeding or asks to pump breast milk.
To boot, about half of states, including California, New York, and Nevada, have laws similar to the Break Time for Nursing Mothers provision that require companies to provide break time and accommodations for lactating employees. The details vary so take some time to familiarize yourself with your own state laws here.
What Kind of Space Am I Entitled To?
Simply put, under the Reasonable Break Time for Nursing Mothers provision, your lactation space should be private and functional. “No one should be able to see you or barge in on you. Maybe that’s accomplished by putting a lock or sign on [the] door,” Morris says.
It needs to, at the very least, have a place for you to sit and a flat surface for your pump other than the floor. Most importantly, you shouldn’t be relegated to the bathroom—or any other unclean space. “Breast milk is food for babies, so it cannot be prepared in a toilet stall,” Morris says.
Breast milk is food for babies, so it cannot be prepared in a toilet stall.
Still, don’t expect bespoke digs. Lactation accommodations don’t have to be permanent, so it’s not uncommon for employers to designate a room used for other purposes—such as a supply room, empty office, or conference room—as a pumping room.
How Much Time Is Considered “Reasonable”?
As anyone who’s had the excruciating experience of waiting for three ounces of milk to accumulate drop by drop can tell you, the time it takes to pump varies not just person to person, but even session to session. Fortunately, what’s considered “reasonable” isn’t specified. According to the Department of Labor, it’s “as frequently as needed by the mother.”
And remember that your break time doesn’t just cover the act of pumping, it also includes all the related activities, including the time it takes you to get to the lactation room, assemble your pump parts, clean up, store your milk, and get back to work.
What if I Don’t Work a Traditional Desk Job?
Not all jobs involve eight hours spent behind a computer screen. Professions like food services and retail put different demands on employees’ days that may make it difficult to find time and space to pump. In these situations management is still on the hook to ensure that there is coverage in place that allows employees to pump, according to Morris. “When staffed properly, most businesses can provide breaks for rest and eating. Finding coverage is a normal part of doing business,” she says.
When staffed properly, most businesses can provide breaks for rest and eating. Finding coverage is a normal part of doing business.
But it could mean you have to get creative with your space. Lisa, an elementary school teacher, had to navigate this when she was nursing. “I used my classroom. I knew my desk area was clean, and I didn’t want to be offered a closet, which is what a lot of my friends did at other schools,” she says. “I locked my doors, put up a ‘do not enter’ sign and pumped at my desk. I brought a pumping cover, told my co-workers, and did my thing.” Because coverage is hard to come by in her district, she scheduled her pumping breaks to coincide with her students’ specials, lunch, and her commute.
The U.S. Department of Health and Human Services’ Office on Women’s Health offers clever solutions for carving out time and space in other industries. For example, a retrofitted dressing room could serve as a pumping space in a clothing store, or a manager’s office could become a makeshift lactation room in a restaurant.
How Do I Make Sure My Employer Is Ready to Give Me What I Need?
Don’t wait until you’re juggling a baby on top of your professional responsibilities to figure out your pumping plan. Talk to your boss before you take maternity leave.
“The big suggestion I have is to tear off the Band-Aid and have the awkward conversations up front. Don’t beat around the bush,” says Jessica Shortall, author of Work. Pump. Repeat.: The New Mom’s Survival Guide to Breastfeeding and Going Back to Work. You may want to start the conversation over email if it feels less awkward than face-to-face.
If your company’s accommodations are unclear, resist the urge to go in guns blazing. “I don’t think it’s a good idea to march into someone’s office waving around a print-out of the state law because that’s antagonistic,” Shortall says. “There are other ways to go about it at first.”
Shortall recommends thinking about what you’ll need to pump in terms of space and time and writing out as much of a plan as possible before you speak with your manager. “The biggest thing is to get proactive,” she says.
Consider using this sample script to guide the conversation: Since we don’t have a designated lactation space, I’d like to discuss how we can work together to create one. Here are a few ideas I had… I’d like to get ahead of this so I can be as productive as possible and cause minimal disruptions when I return.
How Do I Communicate How Pumping Will Affect My Schedule and Availability?
In addition to telling your manager what you’ll need in terms of space, be clear with them about the time you’ll need. Shortall suggests having a conversation with direct reports as well. Let them know that pumping will impact your schedule to some extent, but that it’s a temporary change.
You may want to go as far as to block out your pump breaks on your shared calendar so that they’ll know you won’t be available. Before returning from leave, for example, I set up three daily recurring 20-minute appointments at the times I anticipated pumping and treated them like any other meeting I’d honor.
What Do I Do if My Employer Isn’t Meeting These Requirements or I Feel I’m Being Discriminated Against?
“Bias against mothers is one of the strongest forms of bias against women,” Morris says. “Breastfeeding and seeking accommodations for pumping really draws attention to a worker’s motherhood role.” What’s more, breastfeeding discrimination exists in many industries and has serious economic ramifications for the nursing parents it affects.
The first thing you can do if you’re denied accommodations or suspect you’re being discriminated against is to have a conversation with your manager or, if your manager is the obstacle, HR. When you have these talks, ask specifically what the problem is so you can try to troubleshoot it. Come ready with solutions to combat concerns about time or space.
For instance, if your boss is worried about a lack of space in your small office, you can suggest a temporary option, like a screened-off area or an unconventional space, such as a storage room. Sometimes having a note from a healthcare provider with medical documentation of their recommendation—like this example provided by the Center for WorkLife Law—may be helpful, says Lebedevitch. It could come from your doctor, your child’s pediatrician, or your lactation support provider.
We definitely encourage moms to get help as soon as they need it. Moms aren’t alone to fight this battle.
You can also seek assistance or just a second opinion outside of work if you think bias is afoot. “We definitely encourage moms to get help as soon as they need it,” Lebedevitch says. “Moms aren’t alone to fight this battle.”
Initiatives like Pregnant@Work and A Better Balance offer free legal hotlines. Because each case is so different, you’re best off getting advice tailored to your situation. Make sure to keep records of any concerning behavior—including relevant emails or texts and written accounts of incidents with dates—so you have something in writing to help you reliably remember everything that’s been said to you.
The triple-whammy pressures of performing at work, raising an infant, and figuring out how to pump can feel insurmountable. But it’s important to remember that you’re not alone.
“Because pumping is an issue that affects almost exclusively women, it gets dismissed as a problem that doesn’t need to be solved at work,” Shortall says. “I think we absorb some of that too and think, ‘it’s on me and only me to solve.’”
Though you’ll need to be ready to advocate for yourself, there are regulations and resources that have your back. You’ve got enough to lose sleep over right now—don’t let pumping laws be one of them.
Photo of person carrying a backpack in the office courtesy of Maskot/Getty Images.
Mary Squillace is an award-winning writer and editor who has covered everything from health and beauty to travel and astrology for a variety of national lifestyle publications. She currently lives in Los Angeles where she reports to the most demanding boss she's ever had: her toddler. You can find her on Instagram, Twitter, or LinkedIn.More from this Author