Employers in Ohio, Kentucky, and West Virginia may soon be required by law to provide additional accommodations to certain employees. Legislation on the horizon will require employers to provide several accommodations to new mothers who wish to continue breastfeeding their babies after returning to work from maternity leave. The terms of the legislation probably will require the following accommodations: (1) providing extra unpaid break time to “express” or “pump” breast milk, (2) a private location for the employee to express or pump, and (3) refrigerator space for the storage of the milk.  

As the medical profession’s knowledge of the health benefits of breastfeeding has continued to grow in recent years, the pressure on lawmakers also has increased. Since the first state passed such legislation in 1998, fifteen states and the District of Columbia now require the exact accommodations listed above or something similar. Nine of those fifteen states passed their legislation within the last three years.

Kentucky and Ohio currently have breastfeeding legislation on the books, but not in the employment context. Like forty other states, Kentucky and Ohio have laws protecting the right of mothers to breastfeed in any public place where they are otherwise authorized to be. Kentucky also exempts breastfeeding mothers from jury duty. West Virginia currently has no law addressing breastfeeding. While Ohio, Kentucky, and West Virginia do not require accommodations for breastfeeding employees now, the prevalence of breastfeeding legislation and the current trend suggest that it is something to look out for soon in the tri-state area.   

And if not from our state legislatures, then the change may come from Washington. Two bills recently were introduced that would require employer accommodations similar to those listed above across the entire country. While both bills currently are in committee, their introduction alone signals the wide recognition of the benefits of breastfeeding that is leading to the passage of legislation nationwide.   

Assuming then that breastfeeding accommodation laws are on the way, the question will then become one of compliance, which will be easy for some employers and not so easy for others. On the one hand, employment settings that are primarily office-based or clerical might have vacant offices or conference rooms at any given time that new mothers can use to express or pump breast milk. A vacant office or conference room clearly would meet the requirement of providing a private location. (As a side note, the laws almost always state that private locations must be “reasonably” close to the employee’s work area and that the private location cannot be a bathroom stall). Likewise, many employers already have refrigerators available to employees.

On the other hand, employers in settings that are more industrial in nature might find it easy to provide extra break time but be hard-pressed to provide a sufficient private location and refrigerator space. Fortunately, many of the laws do recognize that all employers are not the same and often allow exceptions for employers who would suffer “undue disruption” or “undue hardship.”  

Because the laws are so new, and have not been interpreted by very many courts, the level of disruption and hardship necessary to excuse compliance is not yet clear. Ultimately, counsel will be monitoring the progress of proposed legislation and be available to assist employers in understanding and complying with the laws when they take effect.

Should you have any questions regarding the progress of breastfeeding accommodation laws in your state or other compliance issues, please feel free to contact the attorneys at Jenkins Fenstermaker, PLLC at (304) 523-2100.