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Newsletter/Employment Law Bulletin, June 2008

EMPLOYERS TAKE NOTE: NEW LAW REGARDING BREASTFEEDING MOTHERS IN WORKPLACE

Although there is no federal law requiring employers to provide accommodations for nursing mothers in the workplace, Indiana recently joined the ranks of states enacting their own laws to protect nursing mothers’ rights in the workplace. On February 27, 2008, Senate Bill 219, introduced by State Senator Vi Simpson, was signed into law by Governor Mitch Daniels. The purpose of the new law, effective July 1, 2008, is to ensure the rights of breastfeeding mothers to take care of their health needs and their child’s health needs while at work. The law does not contain any provisions for remedies for violations of the new law. Thus, the remedies are unclear at this time.

EMPLOYER REQUIREMENTS

Under the new law, a private employer with twenty-five (25) or more employees, as well as the State and political subdivisions of the State, is required to provide, to the extent reasonably possible, a private location, other than a toilet stall, where an employee can express the employee’s breast milk in privacy during any period away from the employee’s assigned duties. Indiana does not currently require private employers to provide meal and rest break periods for employees, so the language of the new law does not seem to include an additional requirement for private employers to provide a rest break. Rather, the law requires the employer to provide a private location if there are time periods where an employee is not required to perform assigned duties. The new law sets an even higher standard for the State and political subdivisions of the State by requiring them to provide a reasonable paid break time each day to an employee who needs to express breast milk. However, the break time is not required if providing such break time would unduly disrupt the public employer’s operations.

Further, Indiana’s law is the first of its kind to require employers to accommodate the storage of breast milk. Private employers are required, to the extent reasonably possible, to provide a refrigerator or other cold storage space for keeping milk that has been expressed or allow the employee to provide the employee’s own portable cold storage devise for keeping milk that has been expressed until the end of the employee’s work day. A private employer is not liable for any harm caused by or arising from the expressing of an employee’s breast milk or the storage of expressed milk except in cases of willful misconduct, gross negligence, or bad faith.

IMPLEMENTING NEW REQUIREMENTS

Many of the requirements in the new law can be accomplished by employers with a small investment of time, money and flexibility. In light of these new requirements, employers should consider:

• Establishing a lactation policy in their employee handbooks.
  
  
• Training managers, supervisors, and human resources personnel on the right of nursing mothers to express breast milk in the workplace.
  
  
• Finding and designating a private location that is not within the bathroom for nursing mothers to express breast milk.
  
  
• Notifying employees upon their return from maternity leave of the employer’s lactation policy.