If you’re a worker who is pregnant or breastfeeding, a number of federal laws protect your workplace rights.
- The Pregnancy Discrimination Act. This law, an amendment to Title VII of the Civil Rights Act, prohibits employers from discriminating against you in the terms of your employment on the basis of pregnancy, childbirth, or related conditions.
- The Family and Medical Leave Act (FMLA). Under the FMLA, larger employers must provide unpaid leave for certain family and medical reasons, including pregnancy and bonding with a new child.
- The Affordable Care Act (ACA). The ACA requires employers nationwide to provide lactation breaks for qualifying employees who are nursing.
We'll discuss each of these laws in more detail below.
The laws of your state may also give you additional rights. For example, many states are more generous than the FMLA in providing employees with time off work for pregnancy and caring for a new child.
The Pregnancy Discrimination Act
Title VII prohibits employers from discriminating against employees on the basis of sex; the PDA makes clear that this prohibition includes pregnancy, childbirth, and related medical conditions.
While the PDA does not require employers to provide time off for pregnancy disability, it does require employers to treat pregnancy disability the same as other disabilities for purposes of sick leave or temporary disability benefits.
So, if your employer has a sick leave policy, you should be able to take as many sick days for pregnancy and childbirth as other employees are allowed for other illnesses.
Reasonable Accommodation Requirement
Your employer must provide reasonable accommodations for your pregnancy on the same basis as it provides accommodations to employees who are temporarily disabled for other reasons, unless it has a neutral business reason (one that does not discriminate based on pregnancy) for treating workers differently.
However, even if your employer has such a justification, it must accommodate pregnant employees if its policy would otherwise place a significant burden on female employees, unless the reason for the difference in treatment is strong enough to justify the burden.
Under the PDA, your employer also:
- may not require you to take time off work during your pregnancy if you are able to do your job
- must reinstate you in the same manner in which it reinstates other employees with other temporary disabilities, and
- must give you seniority credit for your period of leave in the same manner as it gives employees seniority credit for other kinds of disability leave.
Most states also prohibit pregnancy discrimination. And, some states require employers to make reasonable accommodations for pregnant employees, regardless of whether they accommodate employees with other disabilities.
The Family and Medical Leave Act
The FMLA requires employers with 50 or more employees to provide up to 12 weeks of leave each year for certain family or medical reasons. For an employee to be eligible, both of the following must be true:
- The employer for which the employee works must have at least 50 employees who work within 75 miles of the employee’s worksite.
- The employee must have worked for the employer for at least 12 months and at least 1,250 hours during the 12-month period before the employee takes leave.
The FMLA allows employees to take time off for a variety of reasons, including their own serious health conditions (including pregnancy and childbirth), caring for a newborn child, and caring for a newly adopted child or newly placed foster child.
Job Security and Time Off
The FMLA provides job-protected leave, which means that you are entitled to get your job back when your leave is over. An employee must be offered the same job or an equivalent one when he or she returns, unless any of the following are true:
- The employee can’t perform an essential function of the job (although the employee may be entitled to a reasonable accommodation under the Americans with Disabilities Act in this situation).
- The employee would have lost the job regardless of taking FMLA leave (for example, because the employee’s department was laid off).
- The employee takes FMLA leave fraudulently.
- The employee is among the highest-paid 10% of the company’s workforce, and reinstating the employee would cause substantial and grievous economic injury to the company (called the “key employee” exception).
Unless one of these exceptions applies, employees are entitled to get their jobs back and to have all of their benefits reinstated when their leave is over. (The FMLA requires employers to continue an employee’s health insurance during leave; for more information, see Taking Family and Medical Leave.)
It's illegal for an employer to reprimand an employee for taking FMLA leave or to count FMLA leave against an employee in any way. For example, an employer may not count FMLA leave as an unexcused absence under its attendance policy.
Taking Leave Under the FMLA
If you know that you will need FMLA leave (for example, because you are pregnant and know you will want to take leave after the birth of your child), you must give your employer notice at least 30 days in advance. If your need for leave is not foreseeable (for example, because your doctor prescribes bed rest for the last month of your pregnancy), you must give as much notice as you can.
Your employer will give you some notices about the FMLA and forms to complete. For the medical portion of your leave, you may be asked to provide a medical certification from your doctor about your condition and how long you will be out.
FMLA leave is unpaid, but you can use accrued paid leave as long as you follow the usual rules under your employer’s policy. Your employer can also require you to use to use your accrued paid leave during FMLA leave. Your employer is allowed to check in with you periodically about your intent to return to work.
State Family and Medical Leave Laws
A number of states have their own family and medical leave laws. Some require employers to provide leave for pregnancy disability and childbirth, some require leave to bond with a new child, and some require that employers make the same leave available to adoptive parents as they provide to biological parents, for example.
These laws may apply to smaller employers, have different eligibility requirements, provide longer periods of time off, and have notice and paperwork requirements that differ from the FMLA.
The Affordable Care Act: Protections for Employees Who Are Breastfeeding
Under the ACA's "Break Time for Nursing Mothers" provision, covered employers must provide lactation breaks to nursing mothers. A qualifying employee is entitled to lactation breaks and a suitable place to express breast milk in the workplace.
Covered Employees
Not all nursing mothers qualify for break time to express breast milk. The provision applies only to workers who aren't exempt from the Fair Labor Standards Act (FLSA), the federal law governing wages and hours.
In general, if you're able to earn overtime pay at your job—whether or not you actually earn it—you can qualify for a nursing break under federal law.
If you're paid a salary and earn over $844 per week (or $43,888 per year), you're probably exempt from the FLSA and not entitled to nursing time under federal law. However, your state's laws might provide you with such a break.
Learn more about the difference between exempt and non-exempt employees.
Covered Employers
All employers that are covered by the Fair Labor Standards Act must provide lactation breaks. The FLSA applies to all employers that do business in “interstate commerce,” which has been defined broadly enough to include all but the smallest and most local employers. Chances are good, therefore, that your employer is legally obligated to provide breaks.
However, the ACA does include an exception for employers with fewer than 50 employees that can show that providing lactation breaks would create undue hardship: significant expense or difficulty, given the size, resources, and structure of the employer. Employers with 50 or more employees must provide breaks regardless of hardship.
Break Time
The ACA requires employers to provide new mothers with lactation breaks for up to one year after giving birth. As for the duration of the breaks, federal law doesn’t require employers to give employees a set amount of time to express breast milk.
Instead, the law provides that employers must give “reasonable” breaks to nursing mothers. These breaks can be unpaid under federal law. (However, some states require employers to permit employees to use their paid breaks, if any, for expressing breast milk.)
Private Space
Employers must provide lactating employees with a private space, other than a restroom, for pumping breast milk. The space must be protected from view by other employees and members of the public.
The law doesn’t require employers to provide a designated lactation room used only for that purpose, although some larger employers choose to do so. Allowing an employee to use an empty office or conference room and putting up a “do not disturb” sign would usually suffice, as long as employees cannot see into the room; an employee might need a screen or shade to block a hallway window, for example.
Retaliation
Employers may not take negative action against employees who exercise their rights under the ACA by requesting time or space to express breast milk. Employers are also prohibited from retaliating against employees for complaining, whether internally or to a government agency, that their employer has violated the law.
State Lactation Laws
Some states have their own lactation accommodation laws, which may impose additional requirements. In California, for example, all employers, no matter how small, must provide reasonable lactation breaks to nursing mothers. California law doesn’t limit this right to the first year after a baby is born: An employee may take lactation breaks for as long as she is breastfeeding her child. In New York, all employers must provide reasonable lactation breaks to nursing mothers for up to three years after birth.
You can find descriptions, citations, and links to the breastfeeding and lactation laws of each state, including laws requiring employers to provide lactation breaks, at the Breastfeeding State Laws page of the National Conference of State Legislatures.
Consult an Employment Attorney
If you're an employee who has experienced pregnancy-based discrimination at work, or you're an employer with questions about your obligations under your jurisdiction's antidiscrimination laws, contact an employment attorney to discuss your legal options.