A Federal judge in New York ruled on June 2, 2015, that an employee can bring a lawsuit against an employer who fails to provide the requisite lactation accommodations mandated in the federal Fair Labor Standards Act (“FLSA”) as modified by the Affordable Care Act. Such accommodations for employees are not only required by the federal FLSA, they are also required by some state laws including California. Nevada does not currently have its own lactation accommodation law.

The New York Case

The case in New York is a class action lawsuit against TD Bank (“TD”). Following her pregnancy leave, Aida Lico (“Ms. Lico”), claims TD failed to provide her with the required accommodations under the FLSA for lactating. According to Ms. Lico, instead of providing such accommodations, her supervisor at TD told her to use a bathroom, a safe deposit room, or an unlocked mail room in order to lactate. Ms. Lico claims that TD failed to provide her with lactation breaks during her workday and when she tried to exert her rights under the FLSA, her employment was terminated.

The federal judge made a preliminary ruling on June 2, 2015, denying TD’s motion for summary judgment holding that the FLSA as modified by the Affordable Care Act, does allow an employee to sue an employer for failure to provide the required lactation accommodations. As a result of this ruling, the case will progress.

The Impact on Employers

According to this case, employers may be sued by employees under the FLSA for failure to provide the appropriate lactation accommodations required by the Affordable Care Act. In order to prevent this, employers should know their obligations under the federal law:

 – Who: Employers must provide lactation accommodations to all employees, both exempt and nonexempt.
 – Who: Employers with fewer than 50 employees may be exempt from the law if providing such accommodations would create an undue hardship on the employer (this is difficult to prove).
– How Long: Lactating employees must be provided with a break for a reasonable period of time in order to lactate. This break must be provided for up to 1 year after the infant’s birth.
– Breaks: Employees may use their normal break times in order to lactate and may take additional unpaid breaks to do so as well.
– Space: Employees must be provided with a space shielded from view and free from the intrusion of co-workers in order to lactate. Bathrooms are specifically prohibited.
– Penalty: Civil sanctions of $1,100 per willful violation.

Employers should note that these are the requirements under the FLSA which is a federal law. In addition to complying with federal accommodation laws, employers are required to comply with individual state accommodation laws which tend to require more of the employer. The lactation accommodations required by California are similar to those under the FLSA with a few important differences:

 – Who: California lactation accommodations apply to ALL employers and employees regardless of the number of employees.
– How Long: Employers must provide employees with a reasonable amount of time to lactate. There is no upper age limit of the child at which these breaks are no longer required.
– Breaks: Unpaid lactation breaks provided to employees are “net” breaks. Time to get to the lactation space is not calculated in the break time.
– Space: Employers must provide employees with a room or other location in close proximity to the work area. Toilet stalls are prohibited.
– Penalty: Civil penalty of $100 per violation.

As always, proper training of managers is very important. Additionally, having well written workplace policies on this subject is recommended.