Seyfarth Synopsis: Some states are known for setting high legislative bars with respect to employment rights and protections (looking at you, California). The State of Georgia isn't one of them. Earlier this month, however, the Peach State broke its mold by enacting one of the most stringent lactation break laws in the country.
Since 2010, the federal Fair Labor Standards Act has required covered employers to provide reasonable, unpaid break time to hourly employees to express breastmilk for a nursing child up to one year after the child's birth. The law also requires that employers provide employees a private place that is not a bathroom for these breaks. The FLSA's lactation break requirement does not apply to salaried workers.
While Georgia previously had a law in place addressing lactation breaks in the workplace, the law did not impose requirements beyond what the FLSA required. The state's law provided that an employer "may, but is not required to" provide a lactation break to an employee who "needs" to express breastmilk "for her infant child." The law additionally provided that an employer "may, but is not obligated to, make reasonable efforts" to provide a location in close proximity to the work area, other than a toilet stall, to pump breast milk.
In a move that commands attention from employers throughout the state, Georgia ended its permissive approach to lactation breaks with the August 5, 2020 passage of HB 1090, also referred to as "Charlotte's Law" (named for a teacher whose supervisor would not allow her to pump during a break). The amended law, which is codified under Georgia Code Section 34-1-6, makes several critical changes:
- Providing the opportunity for lactation breaks is mandatory, not optional;
- Providing a private location other than a restroom to express breast milk in privacy is mandatory, not optional;
- Break time provided under the statute must be paid;
- The age of the child is not referenced; and
- The right to lactation breaks extends to salaried employees.
The law applies to employees who desire to express breast milk at the worksite, and during work hours. Employers are not required to provide this paid break time to employees who are working away from the worksite. Further, the law prohibits employers from discriminating or retaliating against an employee for expressing or requesting to express breast milk, or for reporting any violations of the law.
The new law includes an undue hardship exemption for businesses with fewer than 50 employees. The exemption is available only if compliance would cause "significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."
In addition to following the new law (which is effective immediately), we advise businesses with employees in Georgia to review their break or nursing mother policies to ensure they're configured to promote compliance.
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