Nursing Mother/Lactating Employees and Pregnancy Accommodation in Minnesota

June 12, 2023  |  Scott M. Lepak

An Update on the 2023 Changes to the Law

By Scott Lepak and Katherine Bogart

The 2023 Minnesota legislature amended the prior nursing mother and pregnancy accommodation statute to provide broader protections and clarifications.  The law is at https://www.revisor.mn.gov/laws/2023/0/53/ at Article 11, Section 27. 

It will go into effect on July 1, 2023.      

Nursing Mothers/Lactating Employees

Among the changes to the law, it now requires employers to provide reasonable break times to an employee who needs to express milk.  The prior requirement that the employee be expressing breast milk for her infant child has been removed.  The twelve month limitation following the birth of the child that was in the law has also been removed.  A practical effect of this change is that employees expressing milk in order to sell or donate it are now permitted to take breaks for this purpose.

The law also removes the prior exception where an employer could deny break times where it would unduly disrupt the operations of the employer.  With this revision in the law, it appears that employer hardship is no longer a defense for employers under the law. 

The law adds the requirement that the employer make reasonable efforts to provide a room or other location that is clean, private and secure.  The law continues the existing requirements that the room or location be in close proximity to the work area and not in a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express milk in privacy.  The employer would be held harmless if reasonable effort has been made.

The new law also broadens employee protections to that the employer may not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise discriminate against an employee for asserting rights or remedies under this law. 

There are some areas of note in this amended law:

• This law continues to apply to employers that have one or more employees.

• As noted above, the prior limit that employers only must provide breaktimes for the first 12 months following the birth of the child has been removed. The law now states: “An employer must provide reasonable break times each day to an employee who needs to express milk.”
• These breaks must be “reasonable.” Though “reasonable” was not defined in the original law (1998) nor in the 2021 amendment or the most recent 2023 amendment, there is some authority suggesting that the average time it takes for a woman to pump her breasts is 15-20 minutes. (U.S. Breastfeeding Committee, 2021). With cleaning and putting away equipment, these breaks should last approximately 30 minutes according to this committee. Id.  Whether that “reasonableness” standard would be adopted for purposes of this law is still unknown.    

• Another change is that the language requiring the breaks to run concurrently with the employee’s other breaks if possible has been removed. The law now states that these breaks may run concurrently with the employee’s breaks that are already provided.

• The legislature also removed language that allowed employers to not provide these breaks to employees, if they would “unduly disrupt the operations of the employer”. Meaning that all lactating employees are entitled to these protections regardless of the employer.

• The legislature has also broadened the obligation that employers make reasonable efforts to provide employees with a room or location other than a bathroom to express milk. The space must also be “clean, private and secure.”

Pregnancy Accommodations

The changes to pregnancy accommodation is in the same law.  Areas of note in this amended law are:

• the definition of employer has been changed from a person or entity that employees 15 or more employees to a person or entity that has one or more employees.

• the legislature expanded reasonable accommodations to include a temporary leave of absence, modification of work schedule or job assignment and more frequent or longer breaks.

The existing state law that is continued provides that an employer must provide reasonable accommodations to an employee for health conditions related to pregnancy or childbirth upon request, with the advice of a licensed health care provider or certified doula, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business.  The reasonable accommodation standard still exists under the new law.

The law also provides that a pregnant employee shall not be required to obtain the advice of a licensed health care provider or certified doula, nor may an employer claim undue hardship for the following accommodations: (1) more frequent or longer restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

It continues to require that the employee and employer engage in an interactive process with respect to an employee’s request for a reasonable accommodation.  

Combining the existing and new law, reasonable accommodation may include but is not limited to temporary transfer to a less strenuous or hazardous position, temporary leave of absence, modification in work schedule or job assignments, seating, more frequent or longer break periods, and limits to heavy lifting. Notwithstanding any other provision of this subdivision, an employer shall not be required to create a new or additional position in order to accommodate an employee pursuant to this subdivision and shall not be required to discharge an employee, transfer another employee with greater seniority, or promote an employee.

Consistent with the prior law, an employer may not require an employee to take a leave or accept an accommodation.

Notice

The legislature also created a new subdivision that requires employers to give notice to employees:

An employer shall inform employees of their rights under this section at the time of hire and when an employee makes an inquiry about or requests parental leave. Information must be provided in English and the primary language of the employee as identified by the employee. An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section. The commissioner shall make available to employers the text to be included in the notice required by this section in English and the five most common languages spoken in Minnesota.

Recommendations

In short, the provisions of the 2023 amendments broaden protections for lactating and pregnant employees. Here is what you can do in your workplace to ensure you are complying with these updates:

• Allow lactating employees to take breaks throughout the workday to express their breast milk for about 30 minutes at a time.  Consider any unique circumstances that may require a somewhat longer time (for example the distance from the work location to a private area).
• If possible, ensure that employees have a private, clean and secure location to express their milk.
• Request your employees take their breast pumping time concurrently with any break times already provided, if possible, but understand that it might not be a requirement.
• Review your current nursing mothers and pregnancy accommodation policies in employee handbooks and ensure that policies are compliant with the current law.
• Ensure information that is required to be included in the notice requirement is available in English and the 5 most common languages spoken in Minnesota when employees are hired or request parental leave.

In the event that you have further questions on this matter, please contact Scott Lepak at 763-780-8500 or the other employment lawyers at BGS.