Pumping 9 to 5

By Jake Aryeh Marcus
Issue 48, May/June 2008

According to the US Department of Labor, 56 percent of women with children under age three are employed outside the home in the civilian workforce.¹ In order for these children to be fed breastmilk, most of their mothers will need the cooperation of their employers. And for that cooperation to happen, significant amounts of educating and planning are necessary. But many women who plan to breastfeed are unsure of how they will continue to do so when they return to work. Some mothers wean their children before returning to their jobs, assuming that they won't be able to coordinate lactation and out-of-house employment. Women planning to pump their breastmilk at work may be surprised by an employer's reluctance or unwillingness to make the necessary changes in their work arrangements. Similarly, many employers are unaware of the needs of lactating mothers who are their employees, and of the benefits to employees and employers alike of creating an environment conducive to workplace pumping.

Few employers have support programs in place for workplace lactation, and few laws protect lactating employees. While plenty of research is readily available that documents the benefits to employees and employers of lactation-friendly work environments, ignorance among employers and a lack of legal protection puts the burden on the employee to create a plan that clearly identifies, explains, and justifies her needs. But experts agree that, when equipped with knowledge of their legal rights, a well-formulated plan, information, and dedication, most women employed outside the home can continue to feed their children breastmilk.

Do US employers provide breastfeeding support?
Only 26 percent of US employers report having had a "lactation program/designated area" for their employees in 2007.² However, these employers do not specify whether this means there is a private room in which to pump on-site, professional lactation support, subsidies for breast-pump purchases, or whether the "lactation program" consists of no more than allowing employees to pump in their own offices. The larger the employer, the more likely it is to have a lactation program and/or designated area. Forty-two percent of organizations with 500 or more employees report having a "lactation program/designated area," while only 9 percent of businesses with fewer than 100 employees do.³ The rate of lactation pro-grams also varies by industry, though the results are a bit surprising. In the private service industry—which includes such jobs as hotel maids and waitresses, who are unlikely to have long break times or private offices—the rate is 25 percent, which is pretty much the same rate as that for all employers.⁴ For government employers, however, the rate is only 11 percent⁵—which is positively dismal, especially in a country with federal and state policies that support increasing the rate of breastfeeding.

The good news is that the number of employers reporting having lactation programs and/or areas has been rising—to 26 percent in 2007, up from 18 percent in 2003.⁶ The bad news remains that only a quarter of US employers appear to have lactation support in place for their employees.

Isn't there a law?
No federal law establishes or protects a right to pump breastmilk in the workplace. Although 15 states have statutes concerning the practice (see map), these laws vary widely in what they require employers to do to accommodate employees who express breastmilk, and some don't require employers to do anything at all.⁷ As of this writing, the laws of California, Connecticut, Hawaii, Illinois, Minnesota, Mississippi, Montana,⁸ New Mexico, New York, Oregon, Rhode Island, and Tennessee state that an employer "shall" or "must" allow pumping during breaks and/or provide a place to pump, while Georgia and Oklahoma state only that employers "may" allow breastfeeding employees to pump while at work. But if a state law uses "may" language, the employer is under no obligation to allow workers to pump or to provide any workplace supports. Among those laws that do require employers to allow workers to pump, some, like Mississippi's, provide only that an employer cannot forbid pumping during meal or break times that the employee already gets, not that the employer provide a designated pumping space⁹ (with the exception, in Mississippi, of child-care-facility employees¹⁰). New Mexico law, however, requires not only that the employer provide a woman a space to use a breast pump, but also that the space be "clean and private... near the employee's workspace... and not a bathroom."¹¹

No current state law relating to workplace pumping requires that an employer give an employee break time in addition to the time to which she is already entitled. Only three state workplace statutes—those of California,¹² Hawaii,¹³ and Oregon¹⁴—provide for penalties against employers who violate a worker's right to pump.

A state law that does not require employer compliance can nevertheless serve as a guideline for employers who are willing to help lactating employees, particularly when the law includes specific descriptions of what a pumping woman might need. Under Oklahoma's workplace-pumping law, while the employer is not required to allow pumping or to provide a space in which to pump, the statute states that any space that is provided should not be a toilet stall, should be private, and should be close to the employee's work area.¹⁵ While this kind of law creates no rights for the employee or obligations for the employer, it does establish, for both, a model of a family-friendly workplace, as well as the state's support of those employers who create such an environment.