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Is an Employer Required to Allow Lactation Breaks?

In Colorado, the Workplace Accommodations for Nursing Mothers Act of 2008 ("Colorado Nursing Mothers Act") requires public and private employers who have one or more employees to provide reasonable, unpaid break time or permit an employee to use paid break time, meal time, or both, each day to allow the employee to express breast milk for her nursing child for up to two (2) years after the child's birth. An employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet seat, where an employee can express breast milk in privacy. Reasonable efforts mean any effort that would not impose an undue hardship on the operation of the employer's business. Undue hardship means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business, or the nature and structure of its operation, including consideration of the special circumstances of public safety. Before an employee may seek litigation for a violation of this section, there shall be nonbinding mediation between the employer and the employee.

Under the federal law, the Nursing Mother Amendment to the Patient Protection and Affordable Care Act ("PPACA") requires that employers provide reasonable break time for an employee to express breast milk for her nursing child for one (1) year after the child's birth each time such employee has need to express the milk. The location provided must be a place other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public. Only employees who are not exempt from the overtime pay requirements of the Fair Labor Standards Act ("FLSA") are entitled to breaks to express milk. Further, an employer that employs less than fifty (50) employees may not be subject to the FLSA break time requirements, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. The FLSA also states that it is a violation for any person to discharge or discriminate against any employee because such employee filed a complaint. An employee who is fired after filing a complaint about not being allowed to breastfeed may file a complaint with the Department of Labor or file a private lawsuit seeking appropriate remedies, including but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages.

The first legal challenge under the Colorado Nursing Mothers Act was brought by a teacher at Rocky Mountain Academy of Evergreen ("RMAE"). In late 2010, the teacher arranged for her students to do supervised deskwork for very brief periods during which she needed to pump breast milk; amounting to only twenty (20) minutes, three (3) times per week. Her supervisors resisted the accommodation. In February, the teacher was informed that her contract would not be renewed. Her supervisor made it clear that the termination was not due to her job performance but only because of the "conflict" over her pumping schedule. During discussion about her pumping schedule, one of the teacher's supervisors informed her that RMAE would not accommodate her need to pump and suggested that she feed her baby formula instead. The Colorado statue explicitly recognizes the societal and health benefits of breastfeeding and requires that employers make reasonable accommodations to allow new mothers to express milk at work. The teacher's court filings invoke the protections of the Nursing Mothers Act, as well as federal laws against sex discrimination, pregnancy discrimination, and retaliation for protesting such violations. This case settled out of court but it is a reminder that the Colorado law does not allow employers to force a working mother to choose between breastfeeding her baby and working her position.

If you have a question about workplace accommodations or the PPACA, please contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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