New Changes in Illinois

Significant changes to the Illinois Nursing Mothers in the Workplace Act, (820 ILCS 260/1), have recently been enacted that are applicable to employers with more than five employees.

The amendments require “reasonable break time” (instead of “unpaid break time”) each time an employee needs to express milk. This requirement must be honored for up to one year after the child’s birth.

Importantly, the amendments appear to prohibit employers from reducing an employee’s compensation for time spent for the purpose of expressing milk. Previously, employees could use their existing compensated breaks (usually 20 minutes or less pursuant to the federal Fair Labor Standards Act) to express milk, but any excess break time could be uncompensated. The amendments now imply that reasonable lactation breaks lasting longer than 20 minutes must be compensated.

The Act also now requires employers to prove an “undue hardship” in order to avoid providing the required breaks, and must do so using the “undue hardship” definition found in the Illinois Human Rights Act (IHRA).

Finally, the Act still requires employers to make reasonable efforts to provide a room or other location in close proximity to the employee’s work area – other than a toilet stall – where an employee can express milk in privacy. 

Missouri Law on Nursing Mothers Not Limited to the Workplace

Although Missouri has a statute on breastfeeding, it does not directly address employer obligations in today’s workplace. Missouri law primarily focuses on where a mother may breastfeed, stating that “a mother may, with discretion, breast-feed her child or express breast milk in any public or private location where the mother is otherwise authorized to be.” Mo. Rev. Stat. § 191.915.

Missouri state law adds that the act of a mother breastfeeding a child or expressing breast milk in a public or private location where the mother and child are otherwise authorized to be shall not be considered an act of public indecency, indecent exposure, sexual conduct, lewd touching, or obscenity or any other similar term for purposes of state or municipal law.

Federal Law Also Governs Nursing Mothers at Work

The “Break Time for Nursing Mothers" is a federal law that requires employers covered by the Fair Labor Standards Act (FLSA) to provide break time and a place for nursing mothers to express breast milk at work. At present, the federal law only applies to those employees who are covered by FLSA and are eligible for overtime pay, most hourly wage-earning and some salaried employees (nonexempt workers.)

The law states that employers must provide a "reasonable" amount of time, and that they must provide a private space other than a bathroom. They are required to provide this until the employee's baby turns one year old.

A Limited “Undue Hardship” Exception under the Federal Law

Employers covered by FLSA are subject to the nursing mothers break time requirement unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship. This exception is not available to employers with more than 50 employees.

The federal law does not pre-empt a state law that offers more protections for nursing mothers and additional employer obligations, in which case state law guidelines would have to be followed for nursing mothers.