New state law protections for lactating employees
This article, written by attorney Abbygale Dow, was originally published by seacoastonline and can be found here.
Starting July 1, 2025, employers with six or more employees working in New Hampshire must comply with the State’s new laws for lactating employees. Policies Relating to Nursing Mothers (RSA 275:78-83) was signed into law on August 4, 2023, by Governor Sununu. It aligns NH state law with the Federal PUMP Act (29 U.S.C. § 218d) but also includes enhanced protections that employers must consider.
What is required of employers under NH law?
Every employer with six or more employees working in New Hampshire must:
- Adopt a policy that addresses the provision of sufficient space and reasonable break periods for nursing employees who need to express milk, not to include breastfeeding, during working hours.
- Make this policy available to its employees at the time that each employee is hired.
- Provide access to reasonable, sufficient space, that can be either temporary or permanent, for an employee to use to express milk during working hours.
What is a reasonable and sufficient space?
A reasonable and sufficient space is one that is within a reasonable walk of the employee’s worksite, is not a bathroom, is clean, shielded from view, and free from intrusion from coworkers and the public. At minimum, the space must have an electrical outlet and a chair, if feasible. This language can be confusing but seems to indicate that a chair and electrical outlet is the requirement, unless the employer has a legitimate reason for not providing it.
If the space is not solely for the use of employees expressing milk, it must be made available to an employee needing to express milk when requested by that employee. The space must be available to the nursing employee for a period of at least one year from the date of birth of the child.
What is a reasonable break period?
A reasonable break period means an unpaid break of approximately 30 minutes for every 3 hours of work performed by the nursing employee for the purpose of expressing milk. The break period must be available to the nursing employee for a period of at least one year from the date of the birth of the child.
An employee can take the reasonable break period at the same time as the break or meal periods already provided by the employer. An employer cannot require that an employee make up time related to use of unpaid reasonable break periods.
What is required of employees under NH law?
An employee who works at a covered employer and requires reasonable break periods and sufficient space for the expression of milk during work hours must notify their employer at least two weeks prior to the commencement of such a need, provided that such notification complies with the employer’s policies.
What if an employer cannot provide for reasonable and sufficient break periods?
An employer may be exempted from the new lactation law if providing the reasonable break time and sufficient space for expressing milk would impose an undue hardship to the employer’s operations. The statute defines undue hardship as “any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operations.”
Importantly, the law does not allow for a blanket exemption for employers that determine that compliance would impose an undue hardship. This is one of the only sections in the statute that uses the permissive “may” and should be exercised with caution.
What do employers need to do prior to July 1, 2025?
- Adopt a policy providing for sufficient space and reasonable break periods for nursing employees who need to express milk during working hours.
- Provide all current employees with a copy of the policy and make plans to provide a copy of the policy to all employees hired after July 1, 2025.
- Determine the appropriate place for nursing employees to express milk in compliance with the statute. Know that this could change on a case-by-case basis.
- Determine the means by which the employee is to notify the employer about the need for reasonable break periods and sufficient space for the expression of milk following the birth of a child.
Important Considerations
If an employer violates any provision of the statute, which would include the failure to disseminate a written policy, it can be fined up to $2,500.
While the law does provide for some flexibility (for example, an employer and employee can come to an agreement as to the timing of the reasonable break period and the space provided that is different from the statute), given that NH courts have not yet had the opportunity to interpret the statute, employers should be mindful of taking any actions not expressly provided for in the statute.