Take a break!  Georgia is changing its lactation break law

The state of Georgia has had a lactation break law for some time, but with House Bill 1090, the legislature made some important changes effective August 5, 2020. As most employers know, the federal Fair Labor Standards Act (FLSA) imposes lactation break requirements on employers, so not much emphasis was placed on Georgia's state counterpart, which was merely permissive. That is until now. The Georgia amendment strengthened the law in several notable ways. Most importantly, the law now requires employers to provide paid breastfeeding breaks to all employees.

The first notable change to Section 34-1-6 of the Official Code of Georgia Annotated (OCGA) states that the employer “shall provide break time of reasonable duration” and that the break time “shall be paid at the employee’s regular rate of pay.” (Previously it could be unpaid). The law does not specify a reasonable duration; However, it clarifies that an employer “is not required to provide an employee with paid breaks on days when the employee is working away from the employer’s work premises.”

Second, the amendment states that employers are prohibited from requiring salaried employees to take paid leave or reduce their pay due to breastfeeding breaks. This makes it clear that exempt employees also enjoy the protection of the law. However, the FLSA's lactation break requirements do not apply to exempt employees.

Third, the employer must provide “a private location other than a restroom” where the employee can express breast milk (previously the language was permissive, stating that an employer “may use reasonable efforts” to provide a room or other location). the employee).

Finally, while “employer” is defined as “any person or entity 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 that employs fewer than 50 employees is not subject to any requirement of this Code section that would impose an undue hardship on the employer. Similar to other “undue hardship” analyses, an employer may want to consider its size, financial resources, and the nature and structure of its business to determine whether an employee’s request for a breastfeeding break constitutes an undue hardship.

Additional points regarding Georgia statute and the FLSA include the following:

  • Georgia law does not impose a one-year cap on the provision of lactation breaks, as does the FLSA.
  • The FLSA does not preempt state laws that provide greater protection for employees. And
  • The FLSA provides protection against retaliation.

OCGA 34-1-6 now removes state and political subdivisions from the definition of employer; However, they are addressed separately in OCGA 45-1-7.

Employers may want to carefully review Georgia law as well as the FLSA and ensure they are complying with both laws. This includes reviewing manuals and policies, ensuring each workplace has the required private space for breastfeeding breaks, educating employees, and training managers and supervisors on the requirements of both laws.