By Gail Deady, The Secular Society Women’s Rights Legal Fellow

Gail DeadyOn Tuesday, March 10, 2015, Virginia Governor Terry McAuliffe signed into law a bill that permits nursing mothers to breastfeed in any public location (such as a park) or private location (such as a retail store or restaurant) where they are permitted to be present (i.e., are not trespassing). This law comes into effect on July 1, 2015. In the meantime, current Virginia law guarantees mothers the right to breastfeed on state-owned land or property, such as at a state park or in the Capital building. Mothers can also breastfeed in any public place, or any place where others are present, without violating Virginia’s indecent exposure law.

Currently, some—but not all—nursing mothers have additional rights to pump breast milk at work. Virginia employees eligible to receive overtime pay (e.g., hourly employees) are covered by the Nursing Mothers Provision of the Fair Labor Standards Act (FLSA). Under this provision, Virginia employers must provide nursing mothers with (1) reasonable break time to pump breast milk for a nursing child for one year after the child’s birth; and (2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to pump breast milk. Unfortunately, if you are not eligible to receive overtime (e.g., you are paid the same amount each week no matter how many hours you work), your employer does not have to provide these—or any other—accommodations.
The ACLU’s Know Your Rights booklet provides effective and useful guidance for pregnant, post-partum, and breastfeeding workers in a user-friendly, question and answer format. You can also consult the ACLU’s overview of federal employment laws that apply when pregnant or breastfeeding on the job, as well as the Department of Labor’s Fact Sheet #73: Break Time for Nursing Mothers under the FLSA.
Virginia employers that generate over $500,000 in annual gross revenues and engage in interstate commerce[1] must comply with the FLSA’s Nursing Mothers Provision. However, even if an employer is not covered by the FLSA, individual employees may be covered if their job duties involve or relate to interstate commerce. The Department of Labor provides an easy to use Fair Labor Standards Act Advisor to help you determine whether you and/or your employer are covered under the FLSA. Some businesses with less than 50 employees may not be required to comply with the Nursing Mothers Provision if it would pose an undue hardship (e.g., it would be prohibitively expensive or impossible to provide a space for employees to pump). A human resources staff member at your workplace, or your supervisor, should know whether your employer has to comply with the FLSA Nursing Mothers Provision.
While Virginia’s new breastfeeding law is a step in the right direction, Virginians should demand more protection for nursing mothers. Currently, Virginia does not require all employers to either provide reasonable accommodations to nursing mothers during work hours or prove it would be an undue hardship for them to do so. This means a nursing mother’s right to reasonable breastfeeding accommodations at work depends on the type and amount of business her employer conducts, not whether her employer has the resources to accommodate her needs. Further, nursing mothers in Virginia who do not qualify for overtime pay (which includes many salaried workers) are not guaranteed reasonable accommodations to pump milk during work hours. While not all employers have the resources or facilities to accommodate nursing employees, those that do should be required to provide reasonable accommodations to pump breast milk at work—regardless of whether they or their employees are covered by the FLSA.
[1] “Interstate commerce” means trade, traffic, or transportation in the United States (1) between a place in a state and a place outside of that state (including a foreign country); (2) between two places in a state through another state or a place outside the U.S; or (3) between two places in a state as part of trade, traffic, or transportation originating or terminating outside the state or the U.S. 49 CFR 390.5.