On July 1st, a new law takes effect in New Hampshire requiring employers with six (6) or more employees requiring employers to adopt a policy allowing breaks for nursing mothers in the workplace. This new law, RSA 275:78 through 275:83, provides that nursing mothers are entitled to 30 minutes of unpaid break time for every three hours worked. The law also requires the employer to provide a private space free from intrusion that is not a restroom within a reasonable walk of the employee’s workstation. The space must have a chair and an electrical outlet. If the space is used for purposes other than expression of breastmilk, it must be made available for nursing employees upon request.
The law recognizes a nursing mother’s need to express breastmilk for up to one year after the birth of the child. Employees who need these breaks must notify their employer at least two weeks in advance. Employers cannot require the employee to make up the time used for breaks by asking them to extend their workday. Employees may opt to take their lactation breaks simultaneously with meal breaks or other unpaid break time. The new law does not require employers to accommodate breastfeeding at work, only the expression of milk.
This new law provides limited circumstances under which an employer may claim that providing these breaks to comply with the law would present an undue hardship. The law defines an undue hardship as any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.
Employers who do not have a spare room available should consider using partitions, curtains, or other options to create a private space for employees who need to pump at work.
Employers should also be aware of the federal PUMP Act, enacted on December 22, 2022, which also recognizes the need for breaks for workers who are lactating for up to one year after the birth of the child. The PUMP Act applies to all employers with 50 or more employees. Employers who are concerned about their ability to comply with the law are advised to seek counsel.
In addition to these laws recognizing the rights of nursing employees, both New Hampshire law (under RSA 354-A) and federal law (multiple statutes) acknowledge pregnancy discrimination as a form of sex-based discrimination. Employers should seek counsel anytime they are unsure of how to provide accommodations to pregnant or lactating employees. Employers should also review their employee handbooks now to ensure that their company policies reflect these laws.
If you have any questions about accommodations in the workplace, or need assistance crafting company policies or handbooks, the attorneys in Devine Millimet’s Employment Law group are here to help.
By Deirdre Salsich
Of Counsel
dsalsich@devinemillimet.com
603-695-8769
