Know The Law – Breastfeeding at Work – 07/2011

July 1, 2011
Published in the Union Leader

Q: I recently had a baby and will be returning to work, but I would like to continue breastfeeding.  Is my employer required to provide a space for me to nurse my baby at work?

A:  According to federal law passed in March 2010, some employers are required to provide reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child’s birth.  These employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to nurse.  Employers are required to provide a reasonable amount of break time and a space to express milk as frequently as needed by the nursing mother.  All employers covered by the Fair Labor Standards Act, regardless of the size of their business, are required to comply with this provision. However, employers with fewer than 50 employees are not subject to the requirement if the employer can demonstrate that compliance with the provision would create an undue hardship. Factors considered in determining an undue hardship include the difficulty or expense of compliance, as well as the size, financial resources, nature, and structure of the employer’s business.

Employers are not required to compensate nursing mothers for breaks taken for the purpose of breastfeeding their child. However, if the employer already provides compensated breaks, an employee who uses the break time to nurse must be compensated in the same way that other employees are compensated. Furthermore, the employee must be completely relieved from duty during the break time for nursing, or else the time must be compensated as work time.

In regards to the space that must be provided for mothers to breastfeed, employers are not required to create a permanent area for nursing mothers.  Importantly, the space provided for employees to breastfeed cannot be a bathroom.  A space temporarily created by an employer will be considered sufficient if the temporary space is shielded from view, and free from any intrusion from co-workers or the public.

New Hampshire law specifically sets forth that breastfeeding a child does not constitute an act of indecent exposure.  Furthermore, restricting or limiting the right of a mother to breastfeed her child is discriminatory according to RSA 132:10-d.  For all these reasons, it is likely an employer may be required to provide break time for a nursing employee to breastfeed her infant upon the employee’s return to work.

Amy Goodridge can be reached at

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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