Governor Bruce Rauner has signed into law a bill that expands protections for employees needing to express breast milk in the workplace.  The law amends the preexisting Nursing Mothers in the Workplace Act (the “Act”) in several significant ways—most notably that break time provided for the expression of milk “may not reduce an employee’s compensation” regardless of the length of the break.  The amendments took effect immediately upon enactment on August 21, 2018.

The Act previously required employers to provide “reasonable unpaid break time each day” to an employee needing to express milk in the workplace.  This meant that, under the prior version of the Act, employees could use existing compensated breaks (generally those of 20 minutes or less, pursuant to the federal Fair Labor Standards Act) for lactation purposes, but any time beyond such already-provided compensated breaks could be unpaid.  Under the amendments, the word “unpaid” has been removed and now break time provided for the expression of milk “may not reduce an employee’s compensation,” regardless of the length of the break being taken.

The amendments further revise the Act to state that break time being provided for lactation purposes “may” run concurrently with any break time already provided to the employee, whereas previously the law stated that lactation breaks “must, if possible” run concurrently with other break time.  In addition, the amendments now require employers to provide breaks for expression of milk for a minimum of one year after the child’s birth.  The original version of the Act did not include a timeframe.

Finally, the amendments modify the circumstances under which employers may be exempted from having to provide lactation breaks.  Under the prior version of the Act, employers were not required to provide break time for expression of milk if doing so would “unduly disrupt the employer’s operations”—a phrase that was not defined under the law.

Now, under the amendments, employers are required to provide reasonable break time unless they can demonstrate that doing so would “create an undue hardship,” as defined under the Illinois Human Rights Act.  That is, lactation breaks are required unless the employer can satisfy the burden of showing that providing the breaks would be “prohibitively expensive or disruptive” based on the following factors:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of, and number of people employed at, the facility involved in providing the reasonable accommodation, the effect on expenses and resources, or the impact otherwise of the accommodation upon the operation of the facility;
  • the overall financial resources and size of the employer, including the number of employees and the number, type, and location of its facilities; and
  • the nature of the operations of the employer, including the composition, structure, and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility in question to the employer.

In light of these changes to the Act, employers with operations in Illinois should review and update their current lactation break policies and procedures to ensure compliance with the new amendments, particularly with regard to compensation of break time.

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Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.