On August 21, 2018, Illinois Governor Bruce Rauner signed an amendment to the Nursing Mothers in the Workplace Act, which requires employers with five or more employees to provide break time to nursing mothers for the purpose of expressing breast milk for their infant child. The amendments explain and clarify this requirement by addressing the length of time employers are required to provide this break time, whether the break time is compensable, and when employers may avoid providing the requested break time. The amendments are effective immediately. Accordingly, Illinois employers should review their policies and practices for accommodating nursing mothers to ensure compliance with the new requirements.
House Bill 1595 amended the Nursing Mothers in the Workplace Act (the “NMA”) in several important ways. First, employers are now required to provide “reasonable break time,” instead of the former “unpaid break time,” each time the employee needs to express milk during the first year after the child’s birth.
Second, the NMA now states a nursing mother’s break time “may” run concurrently with any break time the employer already provides, whereas the employee pre-amended NMA provided that break time “must, if possible,” run concurrently with any break time (meal or otherwise) the employer already provides to the nursing mother.
Third, the amendments provide that an employer may not reduce an employee’s compensated break time for time used to express milk or nurse a baby. Under the Fair Labor Standards Act, employers that provide breaks must compensate employees for breaks that last between 5 and 20 minutes. Under the Illinois Wage Payment and Collection Act, employers must provide at least a 20 minute meal break to employees who work at least seven and a half continuous hours, but the break may be unpaid. Under the pre-amended NMA, nursing mothers could use their existing employer-provided compensated break time to express milk; however, the employer had the right to deem as uncompensated any excess break time (e.g. any time over 20 minutes). HB 1595 appears to imply that reasonable breaks for the purpose of expressing milk that last longer than 20 minutes must be compensated. Because the NMA is ambiguous on this point, employers should compensate the nursing mother’s entire break time if it is for the express purpose of expressing milk and/or nursing a baby.
Finally, HB 1595 replaces language under the pre-amended NMA which provided that an employer is not required to provide break time if to do so would unduly disrupt the employer’s operations. Now, the NMA provides that an employer shall provide reasonable break time as needed by the nursing mother, unless to do so would create an undue hardship as defined under the Illinois Human Rights Act (“IHRA”). The IHRA defines “undue hardship” as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer. The employer bears the burden of proving the undue hardship.
Most of the remaining pre-amended obligations still exist under the amended NMA. Most notably, employers are required to make reasonable efforts to provide a room or other location in close proximity to the employee’s work area for the nursing mother to express milk in privacy.
If you have any questions regarding the content of this alert, please contact Scott Cruz at (312) 985.5910, scruz@clarkhill.com or another member of the Clark Hill’s Labor and Employment practice group.