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Breastfeeding and Expressing Milk at Work: New Protections Under NJ Law

By on February 1, 2018 in Employee Rights with 0 Comments

Most employers are aware that they cannot discriminate against an employee on the basis of pregnancy.  But what about the mother who returns from leave after having a child and continues to breastfeed and express milk? As of January 8, 2018, those mothers are now “protected” against discrimination in the workplace under a new law which expanded the New Jersey Law Against Discrimination to prohibit any type of workplace discrimination against women who breastfeed or express milk at work.

What Does the Law Say? The new law adds breastfeeding as one of the “protected classes” under the Law Against Discrimination, which were previously limited to pregnancy, sex, marital status, race, creed, color, national origin, ancestry, age, affectional or sexual orientation, genetic information, gender identity or expression, and disability, among others.

As an Employer, What Should I Do? In the first instance, employers are cautioned not to take ANY adverse employment action against an employee who is protected under the new law. Such actions may include demotions, transfers, and terminations. Second, employers should carefully review and update their employee manuals and handbooks to ensure that they are updated to include this new “protected class” and to ensure that supervisors and co-workers do not harass or discriminate against others for breastfeeding or expressing milk. Also, employers should consider designating a “private area” as described below.

Do We Have to Provide a Separate “Expressing Area”? The law requires that employers, “as an accommodation,” provide nursing employees with a suitable room or other location with privacy, other than a toilet stall, in close proximity to the employee’s work area, so that the employee can express breast milk for the child.

Are They Entitled to Extra Break Time? The short answer is “no.”  The law does not require employers to provide nursing mothers with extra break time. Rather, employers must treat a nursing mother’s breaks the same as any other employee’s and is not required to pay the nursing mother for their breastfeeding “breaks” unless the employee was already receiving compensation for that time.

Are There Any Limits to Employers’ Obligations? In fact, there are. Like all laws dealing with workplace accommodations, the law requires that the above accommodations be made unless the employer can demonstrate that providing the accommodations would impose an “undue hardship” on the  operations of the business.

How Do Employers Determine if an Undue Hardship May Exist? This is where employers need to be very careful and consider seeking professional advice. Whether an undue hardship exists is “fact sensitive” and includes factors such as the number of employees in the business, the number and type of the employer’s facilities, the employer’s budget, type of operations, composition and structure of workforce, nature and cost of the accommodation, and whether granting the accommodation would involve the employee’s not being able to perform an essential function of her job.

What if the Accommodation Simply “Costs too Much”? Again, this is where employers should heed the advice that “forewarned is forearmed.”  This means that there are legions of court and agency decisions that suggest that while the cost of an accommodation may be a factor in determining whether an undue hardship is presented, cost alone may not be “enough” to deny the accommodation. Again, other factors, described above, should be identified, analyzed, and considered in the “formula” as to whether an undue hardship may be presented by the employer’s accommodating a request under the new law.

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Carmen Saginario Jr., Esq

About the Author

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice on employment litigation and counseling. He regularly counsels clients on litigation avoidance, personnel policies and procedures including those associated with the Americans with Disabilities Act, Family and Medical Leave Act and Fair Labor Standards Act, employment discipline, layoffs and other terminations. Mr. Saginario directs and participates in internal investigations involving claims of harassment, policy violations, ethics and other employment issues. He also appears on behalf of private and public sector clients before the judiciary as well as State and Federal administrative agencies (EEOC, N.J. Division on Civil Rights, etc.). Mr. Saginario is also experienced in representing clients before arbitrators and mediators. He has negotiated numerous public collective negotiations agreements (e.g., law enforcement, public works, etc.). Mr. Saginario has been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent).

Mr. Saginario also regularly represents clients in administrative and complex civil litigation matters and also supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs.

Mr. Saginario serves as counsel for governmental and other entities (including counties, municipalities, school boards, and fire districts) and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues.

Mr. Saginario served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean, and currently serves as Vice Chair and Director of Administration for the Cinnaminson Sewerage Authority.

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