Thursday 3rd September 2020

The state of Georgia has had a lactation pause law on the books for quite some time, but with House Bill 1090 lawmakers made some important changes effective August 5, 2020. As most employers know, the Federal Fair Labor Standards Act (FLSA) provides lactation break requirements for employers, so the Georgian counterpart to Georgia, which was merely allowed, was not given special consideration. This is the case until now. The Georgian amendment has improved the statute on a number of notable points. Most importantly, the law now requires employers to provide paid breastfeeding breaks to all employees.

The first notable amendment to the Official Code of Georgia Annotated (OCGA), Section 34-1-6, states that the employer “provides a break time of reasonable duration” and that the break time is “paid at the employee’s regular pay rate” (previously could it will be unpaid). The law does not define a reasonable duration; It is made clear, however, that an employer “is not required to give an employee a paid break on a day when the employee works outside the employer’s place of work”.

Second, the amendment states that employers are prohibited from requiring employees who are paid on a salary basis to take paid vacation or cut their salaries due to breastfeeding breaks. This makes it clear that exempted workers also receive the protection of the law. The FLSA lactation break requirements, on the other hand, do not apply to released employees.

Third, the employer must provide “a private place other than a toilet” for the worker to express breast milk (previously the language was allowed and it was stated that an employer “can make reasonable efforts” to a room or other location to be provided by the employees).

While “employer” is defined as “any person or organization that employs one or more employees”, there is an exception for employers with fewer than 50 employees (similar to the FLSA). The amendment states:[a]An employer who employs fewer than 50 people is not subject to any requirements of this section of the Code that would impose undue harshness on the employer. Similar to other “unreasonable hardship” analyzes, an employer may want to consider their size, financial resources, and the nature and structure of their business to determine if an employee’s request for a lactation break presents undue hardship.

Some additional points regarding the Georgia Statute and FLSA include the following:

  • Georgia law does not have a one-year cap on lactation breaks like the FLSA does.

  • The FLSA does not enact state laws that provide better protection for workers. and

  • The FLSA provides protection against retaliation.

OCGA 34-1-6 now cuts government and political subdivisions out of the definition of employer; However, they are dealt with separately in OCGA 45-1-7.

Employers may want to carefully review the Georgian Statute as well as the FLSA and make sure they are compliant with both laws. This includes reviewing manuals and guidelines, ensuring that the necessary private space for lactation breaks is available on every construction site, training staff, and training managers and supervisors on the requirements of both laws.

© 2020, Ogletree, Deakins, Nash, Smoak and Stewart, PC, all rights reserved.National Law Review, Volume X, Number 247