While the New Jersey Law Against Discrimination was recently amended to specifically include pregnancy discrimination, there is no current statutory law in New Jersey which provides specific protections for working mothers who breastfeed.
This means that New Jersey mothers need to look to federal law, which provides employment protections for breastfeeding mothers. This is the Break Time for Nursing Mothers Law, which went into effect in 2010. This law is part of the Patient Protection and Affordable Care Act, under the Fair Labor Standards Act, and ensures that breastfeeding mothers who are hourly employees have a private place – other than a bathroom — to express breast milk, and that these workers are given reasonable break time, until their baby or babies turn one year old. The Break Time for Nursing Mothers Law applies to all employers, except for employers with fewer than fifty employees if providing break time and a place to pump would cause them an undue hardship.
Mothers do not have to be paid for their breaks during which they pump breast milk, unless they would otherwise be paid for the break time. Between gathering supplies, moving to the pumping location, setting up, pumping, washing equipment, and storing milk, a pumping break can often take around 30 minutes. If a “pumping break” extends beyond the length of the usually paid break, the employer must pay for the usual break time, but does not have to pay for the remaining time. There are many resources online, where breastfeeding mothers can find support and ideas to help streamline the pumping process.
The private space does not have to be dedicated solely to breastfeeding employees, but must be available whenever it is needed. It could be an office or storage room, but it must be completely private, so that the breastfeeding employee is ensured that no one will be able to see her or enter the room, while she is pumping. The space also has to be usable for pumping, which usually means that there should be a table or shelf and a chair, at a minimum. Employers are not required to provide electrical outlets or sinks in the pumping rooms, but these are certainly helpful features, which are also beneficial to the employer, because they can allow the employee to get back to work more quickly.
Employers are required to allow women breaks to pump when then need to. For most new mothers, this means every two or three hours, and the frequency decreases over time for most women.
If an employee is not allowed a time and space to pump breast milk when needed, an employer with fewer than 50 employees can claim that it wasn’t able to comply with the law because doing so would be an undue hardship. Issues to be considered in determining whether there is an undue hardship include the resources, size, structure, and nature of the employer.
If a breastfeeding mother complains that she was not allowed time and space to pump breast milk, as required by law, the employer may not retaliate against her for making such a complaint. If the employer fires her or otherwise discriminates against her, the employee can file a retaliation complaint with the United States Department of Labor, Wage and Hour Division (WHD), or file a private action, seeking reinstatement and double her lost wages. The WHD investigates such claims, and prioritizes them, because not expressing breast milk often enough results in a lower supply of breast milk.
While New Jersey has not yet provided additional protections for breastfeeding workers, New Jersey does allow women to breastfeed in public. This may be relevant to some employment situations. N.J.S.A. 26:4B-4 provides that mothers can breastfeed anywhere in a public place, as long as the mother is allowed to be there herself.