A Crash Course in Breastfeeding Laws for New Moms

Maressa Brown

A whopping 81 percent of new mothers start breastfeeding right after giving birth, according to the 2018 Centers for Disease Control and Prevention (CDC) Breastfeeding Report Card. But only about 25 percent of babies were exclusively breastfed six months later. That's no surprise given the challenges so many moms face. The CDC chalks the percentage dip to moms lacking the support they need, such as from healthcare providers, family members, and employers.

Thankfully, a growing number of federal and state laws are on breastfeeding moms' side. Here's what you need to know about laws that cover breastfeeding in public, breastfeeding at work, and more.

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Breastfeeding in Public Laws

Breastfeeding mothers will be relieved to know that all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands have enacted legislation that allow women to breastfeed in any public or private location, notes Ruth Jackson Lee, Esq., attorney and an adjunct law professor at Florida State University College of Law. A few places also have additional laws related to public spaces, notes the National Conference of State Legislatures (NCSL).

For instance, Puerto Rico requires shopping malls, airports, public service government centers, and other select locations to have accessible areas designed for breastfeeding and diaper changing that are not bathrooms. Similarly, Louisiana's law requires state buildings to provide suitable areas for breastfeeding and lactation.

Breastfeeding at Work Laws

Nationwide, moms in the workplace are protected under the Break Time for Nursing Mothers Law, which was an amendment to the 1938 Fair Labor Standards Act. "Employers covered by the Fair Labor Standards Act are required to provide basic accommodations for breastfeeding mothers at work—up to one year after the child’s birth—each time such employee has need to express milk," explains Lee. "The place must be shielded from view and free from intrusion from co-workers and the public."

The law states that the private space for lactation must not be a bathroom and "private" is defined as a space where others cannot see an employee while she is pumping breastmilk. In other words, it could be an area blocked off by a mobile screen or tall cubicle wall; it doesn't have to be a permanent, dedicated lactation room, notes the U.S. Department of Health and Human Services.

State-Specific Laws for Breastfeeding at Work

Twenty-nine states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace, notes the NCSL. Many echo or elaborate on the federal Break Time law, and you can search breastfeeding laws at work by state here. A couple of examples:

In Hawaii, state law prohibits employers to forbid an employee from expressing breast milk during any meal period or other break period, and provides that it is unlawful discriminatory practice for any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace.

In Maine, state law goes further than federal, specifying that an employer must provide adequate unpaid or paid break time to express breast milk for up to 3 years following childbirth.

Breastfeeding Laws by State

In addition to covering breastfeeding in public, certain states have passed measures to protect breastfeeding moms in a variety of other ways—whether that means being able to pass on jury duty or nurse in a child care facility.

Public Indecency Breastfeeding Laws

Thirty states, the District of Columbia, Puerto Rico and the Virgin Islands exempt breastfeeding from public indecency laws, according to the NCSL. Those states are Alaska, Arizona, Arkansas, Florida, Idaho, Illinois,Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming.

Jury Duty Breastfeeding Laws

"A minority of states have also passed laws to exempt or excuse breastfeeding mothers from jury duty," Lee notes. She points out that New York is the latest state to take action in this realm. Last month, Gov. Andrew Cuomo signed the bill into law, allowing nursing moms to delay jury duty with a note from their physician, as long as they have not already postponed or delayed their service.

"While jury service is a critically important civic duty, we also know new moms oftentimes juggle countless responsibilities and navigate enormous adjustments in the early stages of their child’s life," Cuomo said in a statement. "This commonsense measure takes that reality into account by providing new moms the flexibility and option to postpone jury service while they care for a newborn."

The Empire State joins 17 other states and Puerto Rico in giving breastfeeding moms the ability to delay jury duty: California, Connecticut, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Oregon, South Dakota, Utah, and Virginia.

Child Care Facility Laws

At least three states have laws related to child care facilities and breastfeeding, NCSL notes:

  • Louisiana prohibits any child care facility from discriminating against breastfed babies.

  • Mississippi requires licensed child care facilities to provide breastfeeding mothers with a sanitary place that is not a toilet stall to breastfeed their children or express milk, to provide a refrigerator to store expressed milk, to train staff in the safe and proper storage and handling of human milk, and to display breastfeeding promotion information to the clients of the facility.

  • Maryland requires child care centers to promote proper nutrition and developmentally appropriate practices by establishing training and policies promoting breastfeeding.

Other Unique Breastfeeding Laws in the U.S.

The NCSL points out that other states have unique, specific laws for breastfeeding moms. A few examples:

Tax exemptions: Maryland gives breastfeeding moms a tax break, exempting the sale of tangible personal property that is manufactured for the purpose of initiating, supporting, or sustaining breastfeeding from sales taxes and use taxes. Louisiana also prohibits state sales taxes and use taxes from being applied to any consumer purchases of breastfeeding items.

Correctional facility rights: New York also created a law that allows a child under one year of age to accompany mothers to a correctional facility if the mother is breastfeeding at the time she is committed.

Public school rights: California requires schools operated by a school district or a county office of education, the California School for the Deaf, the California School for the Blind, and charter schools to provide reasonable accommodations to a lactating pupil on a high school campus to express breast milk, breastfeed an infant child, or address other needs related to breastfeeding. Illinois requires public schools, including charter schools, to provide reasonable accommodations to a lactating pupil, as well.

Breastfeeding Custody Laws

Every state has its own laws when it comes to child custody, however at least three states have laws related to breastfeeding, according to Heather Frances, J.D. on LegalZoom.com:

  • In Maine, a judge must consider whether the mother of a child under one year old is breastfeeding when the judge determines parental rights and responsibilities.

  • In Michigan, one of the factors a judge must consider when determining allocation of parenting time is whether the child is under six months old and breastfeeding or under one year old and receives a substantial portion of his nutrition through breastfeeding.

  • In Utah, a judge may consider that a nursing child’s lack of reasonable alternatives when determining whether the default custody schedule should apply to a particular case.