School of Public Health

The Problem with Workplace Lactation Policy (& How to Fix it)

August 2017
Author: Malka Main

Oregon Governor Ted Kulongoski signed the state workplace lactation law on May 17, 2007, (three years before the ACA accommodations), surrounded by the legislative sponsors and the team from Nursing Mothers Counsel, the small grassroots breastfeeding support group that wrote the bill and did not stop lobbying the legislature until it passed.

Briana Jegier, APHA Breastfeeding Forum Chair, says ACA workplace lactation law is safe, for now.

Mothers huddle behind filing cabinets, lean against the walls of heat-less utility closets, and sit facing the corners of their cubicles to privately pump their breastmilk. Only four out of ten working mothers in the U.S. benefit from the Affordable Care Act’s (ACA) workplace accommodations, according to a recent study.1 This lack of access is reflected in the dramatic 6 month drop-off rates.The study also shows that if employers could better operationalize the federal accommodations women would be twice as likely to continue breastfeeding at 6 months.1 That number could be raised further if the  accommodations did not include an “undue hardship” exemption for companies with less than 50 employees.

The ACA accommodations, which aren’t subject to repeal under the current budget reconciliation process3, are a minimum standard, said Briana Jegier, Chair of the American Public Health Association’s Breastfeeding Forum. “It’s certainly a good foundation but there is more we should do to support women at work.”

States and municipalities can expand on the federal laws to improve workplace support for breastfeeding mothers, she added. The oblique language of the ACA’s accommodations grant the employer defining privileges over what a private (non-bathroom) space looks like and the length of a “reasonable” (unpaid) break time.  The accommodations don’t include how close the space needs to be to the employee’s workstation, whether travel to and from is counted toward the break time, and whether taking multiple unpaid breaks will endanger the employee’s insurance based on hours worked.

“These are the types of holes that state legislation can help to fill,” says Jegier.

THE STATE OF WORKPLACE ACCOMMODATIONS IN THE U.S. AND REGION X

While about half the country have local workplace-related breastfeeding laws4, not all are compulsory. Many of them mirror the ACA’s nebulous accommodation descriptions of break time and private space. Some don’t expressly forbid the bathroom.

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Within the Region X states, Washington allows, but does not require, employers to call themselves “infant-friendly” if they meet certain accommodations for nursing mothers.

Idaho has some of the highest breastfeeding rates in the country but the least legal protections for it. 4 The Idaho Mothers for Nursing in Public (IM4NIP), which holds nurse-ins on the steps of the Capitol, continues to work closely with the state Breastfeeding Coalition. They hope to enact enforceable state breastfeeding laws in all arenas, including the workplace.

After several years of work with local organizations - including Alaska Nursing Association, Planned Parenthood, and Alaska Women's Lobby - Alaska Representative Geran Tarr proposed a House bill in January. If passed in the Senate, the bill would require all Alaska employers to provide the ACA workplace accommodations, without exemption. It also elaborates that the break time should “allow the employee to maintain breast milk supply.”

Oregon is the only state in Region X with a comprehensive and enforceable workplace pumping law. The law requires employers with 25 or more workers to provide nursing mothers at least one 30 minute break every 4 hours in a private, sanitary space near her work station.

The law passed in 2007, three years before the ACA, and it’s an example of how systemic changes need collaboration between the public, public health, and policymakers. Nursing Mothers Counsel (NMC) of Oregon, a peer-to-peer breastfeeding support organization, sponsored and lobbied the bill. "Our work [on state breastfeeding legislation] was not the first work," said volunteer lobbyist Diane Garrettt. "It was the last. There were many before us in the community, and in the legislature, that tried to take up the issue but hadn't gotten it across the finish line."

HOW OREGON PASSED WORKPLACE BREASTFEEDING SUPPORT

Ten years ago, Diane Garrett and her daughter spent two days a week lobbying Oregon legislature to pass a law that would help breastfeeding women return to work.

There were three things, said Garrett,that made the difference. Consistent passionate lobbying, powerful champions, and access to media. "The efforts before us didn't have a sustained face for the issue," she explained. At the time, Garrett was a stay-at-home mother of a three-year-old, and the only NMC member who could commit to lobbying twice a week.  But she was also exactly the right one to do it.

Lawmakers, said Garrett, need to hear from the average citizen, from someone affected by the issue. Before she got involved with the bill, Garrett answered NMC’s 24-hour breastfeeding hotline, soothing new mothers who had recently returned to work and were torn between the terror of losing their jobs and the need to nourish their babies. She wanted to do something to help women on a large scale and not just one phone call at a time. “I was only concerned with moms and babies having real hope,” she said. “I was going to make this system listen and I wasn’t going to quit until that happened. That level of passion is essential. You have to find the person with that passion because this work is enormously challenging."

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It was that passion that helped her establish a relationship with House Minority Leader Jeff Merkley, who wanted the bill to succeed. “You have to find a champion, and you have to find more than one,” said Garrett. When the House flipped from Republican to Democrat in 2006, Merkley became the House Speaker and suddenly NMC and Garrett had a very powerful champion on their side.  “There are so many bills and so many parties screaming for attention. Unless you have people in the upper levels of leadership saying 'Here are my priorities and this bill is on it,' you aren’t going to get the traction you need.”

While Garrett lobbied the legislature, NMC raised public visibility of the workplace breastfeeding issue through media with a federal community breastfeeding grant. “Media coverage was valuable,” said Garrett. “They learned how to write a press release, develop relationships with reporters, and how to use an event to garner media attention.”

THE FIGHT TO IMPROVE WORKPLACE BREASTFEEDING SUPPORT

Like Garrett and NMC, MomsRising, a national online grassroots organization with more than a million members, are determined to change the system for breastfeeding mothers, but on an even larger scale. The group just launched a campaign to expand workplace protections for breastfeeding mothers at the federal level.  The I Pumped Here website includes social media feeds that show where real mothers are forced to express breastmilk on the job, a guide for supportive employers, and a petition that demands the Senate improve workplace breastfeeding accommodations.

"Taking care of children is a core value, no matter what side of the aisle you are on,” explained Garrett. “So many state legislators I spoke to were well-versed on the issue and wanted to take action. It was almost like they were waiting for someone like me to come along and complete the picture."


REFERENCES

1. Kozhimannil KB, Jou J, Gjerdingen DK, et al. Access to Workplace Accommodations to Support Breastfeeding after Passage of the Affordable Care Act. Women’s Health Issues, Vol 26, Issue 1, Jan-Feb 2016.

2. Centers for Disease Control. Breastfeeding Report Card— United States, 2016.

4. National Conference of State Legislatures. Breastfeeding State Laws. June 5, 2017.