Brief Summary: Governor
Chris Christie signed into law New Jersey Senate Bill S2709, expanding the New
Jersey Law Against Discrimination (NJLAD) to prohibit discrimination against
women who breastfeed or express milk at work. The law took effect immediately
on January 8, 2018.
Amendment
Prohibits Discrimination Against Women
Who Breastfeed or Pump Milk at Work
S2709
states it is an unlawful employment practice to discriminate against women for
breastfeeding in the workplace. The law requires an employer to provide an employee
breastfeeding her infant child reasonable unpaid break time each day. (NJLAD
prohibits discrimination on the basis of race, creed, color, national origin,
ancestry, age, marital status, civil union status, domestic partnership status,
affectional or sexual orientation, genetic information, pregnancy, sex, gender
identity or expression, disability or atypical hereditary cellular or blood
trait of any individual, or because of the liability for service in the Armed
Forces of the United States or the nationality of any individual, or because of
the refusal to submit to genetic test or make available the results of a
genetic test to an employer.)
Specifically,
the expanded law requires that the employer provide a “suitable room or other
location with privacy” other than a toilet stall for breastfeeding. The room
must be in “close proximity to the work area for the employee to express breast
milk for the child,” unless the employer can demonstrate that providing the
accommodation would be an undue hardship on the business operations of the
employer. Under NJLAD, whether an accommodation constitutes an undue hardship
on an employer’s business is based upon an analysis of the following factors:
“the overall size of the employer’s business with respect to the number of
employees, number and type of facilities, and size of budget, the type of the
employer’s operations, including the composition and structure of the
employer’s workforce; the nature and cost of the accommodation needed, taking
into consideration the availability of tax credits, tax deductions, and outside
funding, and the extent to which the accommodation would involve waiver of an
essential requirement of a job as opposed to a tangential or non-business
necessary requirement.”
Prior to
this amendment, New Jersey did not have an express law related to breastfeeding
in the workplace. However, the Fair Labor Standards Act (FLSA) already provided
this protection to non-exempt (from overtime under the FLSA) employees who are
breastfeeding. Notably, the NJLAD amendment applies to both non-exempt and
exempt employees. The federal requirements do not preempt state laws that offer
employees greater protections.
Conclusion: While
NJLAD already prohibits discrimination on the basis of pregnancy, sex, gender
identity or expression, the amended law expands certain civil rights
protections under the law to include breastfeeding and expressing milk (or
related medical conditions). Employers with business operations in New
Jersey should continue to review and update their policies to ensure compliance
with the amended law.
If you
have any questions about how this decision could affect your organization,
please contact Scott Ohnegian, Natalya Johnson, or any member of Riker
Danzig's Labor
& Employment Group.
