The New Jersey Legislature recently passed a bill amending the New Jersey Law Against Discrimination (“NJLAD”) to include breastfeeding as a protected category. The law took effect immediately after it was signed into law by former Governor Christie on January 8, 2018.
Breastfeeding Protections under the NJLAD
Under the amended law, upon request, employers must provide nursing mothers with reasonable breaks during the workday and a suitable private location (other than a toilet stall) close to the employee’s work area to express breast milk for her infant child as a reasonable accommodation, unless doing so would cause an undue hardship on the employer’s business operations. In determining whether an accommodation would impose an undue hardship, the following factors are to be considered:
- the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of the budget;
- the type of the employer’s operations, including the composition and structure of the workforce;
- the nature and cost of the accommodation, considering the availability of tax credits, tax deductions, and outside funding; and
- the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
These are the same factors used to determine whether an accommodation for pregnancy or related medical conditions would impose an undue hardship under the NJLAD. As a practical matter, it may be difficult for most employers to demonstrate an undue hardship given the nature of the accommodation and the unlikelihood that providing reasonable break times in a private setting to express breast milk would constitute a waiver of an essential job requirement.
In addition, it is now unlawful for an employer to discriminate or retaliate against an applicant or employee because of “breastfeeding” with respect to terms, conditions or privileges of employment.
New Jersey’s Law Provides Broader Protections than under Federal Law
Although many New Jersey employers already provide unpaid breaks for lactating women to express breast milk in a private location (other than a bathroom) for a nursing child in accordance with the Patient Protection and Affordable Care Act’s amendment to section 7 of the federal Fair Labor Standards Act (“FLSA”), there are noteworthy differences in New Jersey’s law. Specifically, only employers with fewer than 50 employees can take advantage of the undue hardship exception to the FLSA’s requirement to provide reasonable break times for nursing mothers. In other words, large employers with 50 or more employees must comply with the FLSA’s requirement to provide lactation accommodations to nursing mothers without any consideration of whether compliance imposes an undue hardship. Moreover, the requirement to provide reasonable break time accommodations for nursing mothers under the FLSA only applies to non-exempt employees and only requires that accommodations be provided for one year following the child’s birth.
In contrast, the NJLAD and the law’s requirement to provide accommodations to nursing mothers covers all employees working in New Jersey, regardless of the employer’s size or the employee’s classification. Furthermore, the NJLAD does not limit the time period that employers are required to provide the accommodation. In other words, employers will need to provide reasonable breaks for as long as the employee is “breast feeding her infant child.”
Practical Guidance for Employers Accommodating Nursing Mothers
Employers should update their EEO/Non-Discrimination and Reasonable Accommodation policies to include breastfeeding and medical conditions related to breastfeeding. Additionally, employers are prohibited from treating employees they know or should know are “affected by breastfeeding” less favorably than other employees who are not breastfeeding but are similar in their ability or inability to work. Therefore, we recommend properly training managers on how to respond to workplace accommodation and leave requests to ensure compliance with the law.
As a practical matter, employees often request that they be provided access to a room with the ability to lock it from the inside to avoid interruptions. Although the NJLAD is silent on this, as a best practice, the room should be shielded from public view and have a door equipped with a functional lock to ensure privacy. Employers should also consider providing an electrical outlet, adequate seating, a small table and access to a refrigerator for purposes of storing expressed milk. In alignment with the law’s goal to support breastfeeding women in balancing work and motherhood, many companies are also utilizing progressive benefits such as providing for the storage and shipment of breast milk to the employee’s home while she is traveling for business.
Employers should take steps now to make these types of accommodations available as needed and update their policies accordingly.