An Employer’s Guide to Breastfeeding and Maternity Leave Legislation

August is World Breastfeeding Month. In recognition of that fact, and in support of working women everywhere, we’ve prepared a brief overview of the laws relating to breastfeeding and maternity leave in the United States. It is important to remember that these laws are always changing, so it is best to consult with an attorney if you have specific questions about the requirements that apply to your business.

Federal Protections for Nursing Mothers in the Workplace 

Section 7 of the Federal Fair Labor Standards Act (FLSA) covers protections for breastfeeding mothers while at work. 

Under this section, covered employers must provide break time and a private space (other than a bathroom) for employees to express milk for one year after a child's birth. Employers are not required to compensate employees for this break time, but they must allow employees to use their existing paid break time for expressing milk. 

However, employers with fewer than 50 employees are not required to comply with these rules if doing so would impose an “undue hardship.” This means that offering breaks or a private space would cause the employer significant difficulty or expense in relation to the size, financial resources, nature, or structure of the business.

State-Level Breastfeeding Laws

The FLSA specifically allows each state to create laws that provide greater protection to nursing employees. Thirty states, as well as the District of Columbia and Puerto Rico, have passed legislation relating to breastfeeding in the workplace. 

For instance, California law requires employers to provide lactation breaks for as long as the employee is nursing her child. This applies even if she is breastfeeding for more than one year. 

While Ohio has not passed any legislation specifically related to breastfeeding in the workplace, Ohio law does allow a mother to breastfeed her baby in a place of public accommodation where she is otherwise permitted to be. It also requires health plans to provide coverage for breastfeeding assistance and training.

You can review the National Conference of State Legislatures’ research on breastfeeding state laws to learn more about the various protections offered across the country. 

Pregnancy and Maternity Leave Laws in the U.S.

In the United States, there is no federal law mandating paid pregnancy or maternity leave. However, the Family and Medical Leave Act (FMLA) does require certain employers to provide up to 12 weeks of unpaid leave for new parents. It also requires employers to allow employees on leave to maintain their group health benefits.

The FMLA applies to public agencies, elementary and secondary schools, and businesses with at least 50 employees. FMLA leave is available to employees who have worked for their employer for at least one year and who have logged at least 1,250 hours over the past 12 months. 

When it comes to paid family leave, the United States offers fewer protections than other developed countries in the world. In fact, the U.S. is the only member of the Organization for Economic Co-operation and Development (OECD), which is an international alliance that includes 38 of the world's highest-income nations, that does not guarantee any paid maternity leave. 

The average length of paid maternity leave among other OECD countries is over 18 weeks, with many offering longer or different types of additional leave. 

Paid Family Leave by State

Some states have their own laws that provide paid family leave. As of 2022, 11 states as well as the District of Columbia have passed paid family and medical leave legislation; however, Ohio is not one of them.

Rather than mandating employers to provide this leave, these laws create state-paid insurance programs that are funded through payroll taxes. Although the details of each program vary, they generally provide a percentage of the employee’s typical earnings as a weekly benefit payment while they are on leave. 

The Benefits of Offering Paid Family Leave

While FMLA leave is unpaid, some employers may choose to offer paid maternity or paternity leave as a benefit to their employees. There is currently a temporary tax incentive for U.S. employers that provide paid family and medical leave to employees, it is scheduled to expire by the end of 2025. 

Even without the benefits of this incentive, a growing number of businesses are discovering that offering paid leave is necessary to compete for talent in today's economy. Many workers, particularly millennials, place a high value on work-life balance and are more likely to work for (and stay with) a company that offers paid leave. 

Moreover, paid family leave can help to reduce absenteeism, improve morale, decrease turnover, and increase productivity. An experienced and knowledgeable business attorney can help you add paid leave to your benefits package and ensure that you comply with the relevant legal requirements. If you have questions about your paid family leave policies, feel free to reach out to our HR attorney, Chisa.