Do I Have a Right to Break Time for Breast Milk Production? By on July 15, 2015

Both federal and Montana state law provide rights for mothers of newborn children to express breast milk while at work. The federal Patient Protection and Affordable Care Act, enacted by Congress in 2010, requires a covered employer to provide unpaid break times to an employee to express milk for her infant child under one year of age whenever the need occurs. Further, the employer must provide a location, other than a bathroom, for the employee's use. Such location must not be in view of, or subject to intrusion from others.

The federal law applies to all employers, but it does provide that an employer of less than 50 employees may avoid compliance if it can show that doing so would impose an undue hardship. The federal law also requires only that the break times be provided to employees who are considered eligible for overtime under the Fair Labor Standards Act. This generally means that upper management employees may not be eligible. While the law requires unpaid breaks for breastfeeding purposes, it also requires that if an employer provides paid breaks to employees, then use of those breaks for breast expression must also be paid.

Montana law is more generous to nursing mothers, but it only applies to state, county, municipal, public school and public college employees. The greater benefits for these employees are not restricted by the federal law. In Montana, public employers may not discriminate against nursing mothers, and they must also accommodate the expression of breast milk at work. Like the federal law, Montana law requires the provision of unpaid breaks for expression in a location other than a bathroom. Going further than federal law, Montana encourages employers to provide storage facilities for the expressed milk.

While the federal law provides the break time benefit only to employees who are eligible for overtime, Montana law applies to any employee in the public sector. Montana law does not limit the right to mothers of children under one year of age. Finally, Montana law contains a non-discrimination requirement. This means that public employers cannot treat nursing mothers differently in their terms and conditions of employment based solely on their need to express milk at work.

At Tipp & Buley, we have over 55 years of collective experience in employment-related legal matters. If you've been denied your right to produce breast milk for your child while at work or suffered adverse consequences for doing so, please call us. We'll put our experience to work for you. Call 406-549-5186 or visit us online to set up a one-on-one consultation..

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