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Federal Workplace Law

Guide to the Rights of Breastfeeding Employees in Illinois

Download a PDF version of this guide.

Purpose: This guide was developed to provide an overview of the laws that protect the rights of breastfeeding employees in Illinois to express breast milk during the workday. The factors that are addressed and the level of protection provided vary widely from one law to another. The chart below details the Illinois and federal laws that impact breastfeeding employees, and the protections those laws provide for each listed component. Components that are not addressed by the law are shaded in gray.

How to Use This Guide: To identify your rights as a breastfeeding employee or obligations as an employer, you must first determine which of the laws apply to you. Then compare each part of the applicable laws. If an employee is covered by more than one law, and those laws address the same component, the employee is entitled to the strongest protection available. If an employer does not provide the required accommodations, a complaint can be filed with the regulatory agency. The agency responsible for enforcement of each law and information on how to file a complaint is included in the chart.

The template was developed to address every component considered in existing state and federal workplace lactation accommodation laws. Some components may not apply to your state.

Where to Go for Help: Many breastfeeding coalitions provide support for employees and employers. See the Illinois Breastfeeding Task Force website or visit the U.S. Breastfeeding Committee Coalitions Directory for a list of all breastfeeding coalitions.

Important Note: The information provided in this guide is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Check with a lawyer or the regulatory agency if you believe your rights have been violated.

Illinois Laws

Illinois Comp. Stat. ch. 820 § 260 Sec. 5-15.

Sec. 5. Definitions. In this Act:
"Employee" means a person currently employed or subject to recall after layoff or leave of absence with a right to return at a position with an employer or a former employee who has terminated service within the preceding year.
"Employer" means an individual, corporation, partnership, labor organization, or unincorporated association, the State, an agency or political subdivision of the State, or any other legal, business, or commercial entity that has more than 5 employees exclusive of the employer's parent, spouse, or child or other members of the employer's immediate family. "Employer" includes an agent of an employer.

Sec. 10. Break time for nursing mothers. An employer shall provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The break time must, if possible, run concurrently with any break time already provided to the employee. An employer is not required to provide break time under this Section if to do so would unduly disrupt the employer's operations.

Sec. 15. Private place for nursing mothers. An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where an employee described in Section 10 can express her milk in privacy.

Resources:

Illinois Human Rights Act (775 ILCS 5/2-102(I-K))
It is a civil rights violation:
(I) For an employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Women affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, regardless of the source of the inability to work or employment classification or status.
(J) Pregnancy; reasonable accommodations.
(1) If after a job applicant or employee, including a part-time, full-time, or probationary employee, requests a reasonable accommodation, for an employer to not make reasonable accommodations for any medical or common condition of a job applicant or employee related to pregnancy or childbirth, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer. The employer may request documentation from the employee's health care provider concerning the need for the requested reasonable accommodation or accommodations to the same extent documentation is requested for conditions related to disability if the employer's request for documentation is job-related and consistent with business necessity. The employer may require only the medical justification for the requested accommodation or accommodations, a description of the reasonable accommodation or accommodations medically advisable, the date the reasonable accommodation or accommodations became medically advisable, and the probable duration of the reasonable accommodation or accommodations. It is the duty of the individual seeking a reasonable accommodation or accommodations to submit to the employer any documentation that is requested in accordance with this paragraph. Notwithstanding the provisions of this paragraph, the employer may require documentation by the employee's health care provider to determine compliance with other laws. The employee and employer shall engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodations.
(2) For an employer to deny employment opportunities or benefits to or take adverse action against an otherwise qualified job applicant or employee, including a part-time, full-time, or probationary employee, if the denial or adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee.
(3) For an employer to require a job applicant or employee, including a part-time, full-time, or probationary employee, affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to accept an accommodation when the applicant or employee did not request an accommodation and the applicant or employee chooses not to accept the employer's accommodation.

(4) For an employer to require an employee, including a part-time, full-time, or probationary employee, to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known medical or common conditions related to the pregnancy or childbirth of an employee. No employer shall fail or refuse to reinstate the employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits upon her signifying her intent to return or when her need for reasonable accommodation ceases, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer.
For the purposes of this subdivision (J), "reasonable accommodations" means reasonable modifications or adjustments to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be considered for the position the applicant desires or to perform the essential functions of that position, and may include, but is not limited to: more frequent or longer bathroom breaks, breaks for increased water intake, and breaks for periodic rest; private non-bathroom space for expressing breast milk and breastfeeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; the provision of an accessible worksite; acquisition or modification of equipment; job restructuring; a part-time or modified work schedule; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.
For the purposes of this subdivision (J), "undue hardship" means an action that is prohibitively expensive or disruptive when considered in light of the following factors: (i) the nature and cost of the accommodation needed; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of the accommodation upon the operation of the facility; (iii) the overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities; and (iv) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce of the employer, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. The employer has the burden of proving undue hardship. The fact that the employer provides or would be required to provide a similar accommodation to similarly situated employees creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.
No employer is required by this subdivision (J) to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation. The employer is not required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so to accommodate other classes of employees who need it.
(K) Notice.
(1) For an employer to fail to post or keep posted in a conspicuous location on the premises of the employer where notices to employees are customarily posted, or fail to include in any employee handbook information concerning an employee's rights under this Article, a notice, to be prepared or approved by the Department, summarizing the requirements of this Article and information pertaining to the filing of a charge, including the right to be free from unlawful discrimination and the right to certain reasonable accommodations. The Department shall make the documents required under this paragraph available for retrieval from the Department's website.
(2) Upon notification of a violation of paragraph (1)of this subdivision (K), the Department may launch a preliminary investigation. If the Department finds a violation, the Department may issue a notice to show cause giving the employer 30 days to correct the violation. If the violation is not corrected, the Department may initiate a charge of a civil rights violation.

Resources:

Federal Laws

Section 7(r) of the Fair Labor Standards Act – Break Time for Nursing Mothers Provision:
(r)(1) An employer shall provide—
A. a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
B. a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Resources:

Title VII of the Civil Rights Act: The Pregnancy Discrimination Act, passed in 1978, amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy, childbirth, and related medical conditions. In 2013, the United States Court of Appeals for the Fifth Circuit held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act.

Title VII states:
(a) Employer practices
It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

Resources:

  • U.S. Equal Employment Opportunity Commission:
    • The Pregnancy Discrimination Act of 1978: statutory language of amendment to Title VII of the Civil Rights Act.
    • Pregnancy Discrimination: webpage detailing prohibited treatment of employees impacted by pregnancy, childbirth, or related medical conditions.
    • Enforcement Guidance: Pregnancy Discrimination and Related Issues: guidance regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act as they apply to pregnant workers. The Enforcement Guidance states that there are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination. An employee must have the same freedom to address lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.

 

State: Ill. Comp. Stat. ch. 820 § 260 Sec. 5-15.

State: Illinois Human Rights Act (775 ILCS 5/2-102)

Federal: Break Time for Nursing Mothers Law

Federal: Title VII of the Civil Rights Act

Eligible Employees

Nursing mothers who are employees of an individual, corporation, partnership, labor organization, or unincorporated association, the State, an agency or political subdivision of the State, or any other legal, business, or commercial entity that has more than 5 employees exclusive of the employer's parent, spouse, or child or other members of the employer's immediate family. "Employer" includes an agent of an employer.

All employees who are women, which includes part-time, full-time, and probationary employees, and all applicants who are women affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.

Nursing mothers who are employees covered by the Fair Labor Standards Act (FLSA) and not exempt from FLSA overtime pay requirements. Important note: if an employer is not covered by the FLSA, its employees may still be covered if the employee's own duties meet certain interstate commerce requirements. Title VII protects employees of private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs. Title VII also applies to employees in the federal sector.

Are Employers Required to Have a Policy on Breastfeeding Employees?

 

No policy is required under Title VII. However, if an employer allows employees to take breaks, change their schedules, or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances. Or, if an employer freely permits employees to use break time for personal reasons, it would violate Title VII to deny break time for expressing breast milk.

Frequency of Milk Expression Breaks

Reasonable unpaid break time each day. The break time must, if possible, run concurrently with any break time already provided to the employee.

Reasonable.

As frequently as needed by the nursing mother. The frequency of breaks needed to express breast milk will likely vary.

Length of Time for Milk Expression Breaks

Reasonable.

Reasonable.

Reasonable. The duration of each break will likely vary.

Duration of Milk Expression Breaks

No limit.

No limit.

1 year after the child's birth.

Space Requirements

Room or other location, in close proximity to the work area, other than a toilet stall, where an employee can express her milk in privacy.

Private non-bathroom space for expressing breast milk and breastfeeding.

A place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is the best way to meet their obligations under the law.

Pay Requirement

Unpaid, unless concurrent with paid breaks.

 

Unpaid, unless concurrent with paid breaks. If a nursing employee is not completely relieved from duty during a break to express breast milk, the time must be compensated as work time.

Are Employers Required to Notify Employees of Their Rights?

Yes. It is a violation for an employer to fail to post or keep posted in a conspicuous location on the premises of the employer where notices to employees are customarily posted, or fail to include in any employee handbook information concerning an employee's rights under this Article. The Pregnancy Rights Notice is available on the Illinois Department of Human Rights (IDHR) website.

Employers are required to post the "EEO is the Law" English poster.
Note: This notice does not specifically address the rights of breastfeeding employees.

Requirements for Employees

The employee and employer shall engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodations. The employee must submit to the employer any documentation that is requested in accordance with this paragraph.

Exemption

An employer is not required to provide break time under this Section if to do so would unduly disrupt the employer's operations.

It is a violation for an employer to not make reasonable accommodations unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer. "Undue hardship" means an action that is prohibitively expensive or disruptive when considered in light of the following factors: (i) the nature and cost of the accommodation needed; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of the accommodation upon the operation of the facility; (iii) the overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities; and (iv) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce of the employer, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer. The employer has the burden of proving undue hardship. The fact that the employer provides or would be required to provide a similar accommodation to similarly situated employees might create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer. The ultimate assessment of whether or not an accommodation is in fact an undue burden will be determined by the agencies on a case-by-case basis.

All employers covered by the FLSA, regardless of the size of their business, are required to comply with this provision. However, employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

Milk Storage

 

Does Unpaid Break Time Impact Full Time Status and/or Eligibility for Health Insurance?

 

Is Unpaid Break Time Expressly Separated from Paid Leave or Paid Time Off?

   

Are Employers Required to Consider Providing Additional Accommodations for Breastfeeding Employees?

Yes. Under the Illinois Human Rights Act, employers are required to provide reasonable accommodation to breastfeeding employees and applicants. A “reasonable accommodation” means reasonable modifications or adjustments to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be considered for the position the applicant desires or to perform the essential functions of that position.

Discrimination/Retaliation

It is a civil rights violation for an employer to deny employment opportunities or benefits to or take adverse action against an otherwise qualified job applicant or employee, including a part-time, full-time, or probationary employee, if the denial or adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee.  It is a civil rights violation for an employer to require a job applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to accept an accommodation when the applicant or employee did not request an accommodation and the applicant or employee chooses not to accept the employer's accommodation. It is a civil rights violation for an employer to require an employee, including a part-time, full-time, or probationary employee, to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known medical or common condition related to pregnancy or childbirth of an employee. No employer shall fail or refuse to reinstate the employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits upon her signifying her intent to return or when her need for reasonable accommodation ceases, unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer.

It is a violation for any person to discharge or in any other manner discriminate against an employee who files a complaint or cooperates with the investigation of a complaint.

Firing a woman or taking other adverse employment action against her because she is lactating or expressing milk is unlawful sex discrimination. An employer may not discriminate against an employee because of her breastfeeding schedule. Women breastfeeding and lactating must be able to take breaks as other employees who take breaks for other medical or personal reasons. Employers are prohibited from firing, demoting, harassing or otherwise retaliating against an employee because she has complained of discrimination or participated in an employment discrimination proceeding.

Protection from Harassment

 

Employers are required to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions, including breastfeeding.

Agency Responsible for Enforcement

Illinois Department of Human Rights.

U.S. Department of Labor, Wage and Hour Division.

U.S. Equal Employment Opportunity Commission.

How to File a Complaint

A charge of discrimination must be filed with the Illinois Department of Human Rights or IDHR within 180 days after the alleged discriminatory action. To file a charge of discrimination, contact IDHR by one of two methods:

1). To contact IDHR in person, print, complete and sign a Complainant Information Sheet ("CIS").  Bring the completed and signed CIS with you when you come In person by bringing the completed and signed Complainant Information Sheet (CIS) when you come.  The CIS is found on the IDHR website.  Print, complete, and sign the CIS prior to arriving at the Illinois Department of Human Rights/IDHR. Intake staff will interview you and, if your allegations are covered by the Act, will draft a charge which you must sign.  IDHR may refer you to other agencies where appropriate.

2). To contact IDHR in writing by printing and completing the Complainant Information Sheet (CIS). A completed CIS may be submitted by mail or facsimile to (312) 814-6251. Submitting the CIS does not mean you have filed a charge.
For more information see the IDHR Brochure: Filing a Charge of Discrimination Under the Illinois Human Rights Act

File a complaint by calling the WHD toll-free at 1-800-487-9243 or visiting www.dol.gov/whd. You will then be directed to your nearest WHD office for assistance.

You may file a charge of employment discrimination at the EEOC office closest to where you live, or at any one of the EEOC’s 53 field offices. You may call 1-800-669-4000 or visit the EEOC website for more information on filing a charge and filing deadlines.   Important Note: Federal sector employees have a different complaint process.

Is the Agency Required to Monitor and Compile Enforcement Reports?

 

Yes.

Sanctions for Non-Compliance

A charge of discrimination may be filed by an employee with IDHR, which will investigate the charge. After the investigation, a written report is prepared recommending whether or not there is “substantial evidence” of a violation of the Act.  A finding of “substantial evidence” means that Complainant has the option of either (1) requesting (within the time period specified in the Act) the Illinois Department of Human Rights/IDHR to file a complaint, on Complainant’s behalf, with the Illinois Human Rights Commission/IHRC, or (2) commencing a civil action (within the time period specified in the Act) in a state circuit court of appropriate venue.  At this point, the Complainant must prove the case before the Illinois Human Rights Commission/IHRC or circuit court of appropriate venue.

Upon notification of a civil rights violation of the subdivision (K) requiring employers to post a notice of these requirements, IDHR may launch a preliminary investigation. If IDHR finds a violation, IDHR may issue a notice to show cause giving the employer 30 days to correct the violation. If the violation is not corrected, IDHR may initiate a charge of a civil rights violation.

An employee whose rights are denied can file a complaint with the Wage and Hour Division, which can go to court to obtain an order requiring the employer to comply. In addition, any employee who is “discharged or in any other manner discriminated against” because, for instance, he or she has filed a complaint or cooperated in an investigation, may file a retaliation complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages.

Remedies may include reinstatement, compensatory damages, punitive damages, back pay for lost wages where someone has been terminated, and requiring an employer to take certain actions to prevent future discrimination.

Do Employees Have Private Action Rights?

Yes.

Yes.

Yes.

Yes, but employees are first required to file a charge with the EEOC

Worksite Designation Program

Breastfeeding is Smart Business Award Campaign.  Note: designation is not required under Illinois law.

Additional Resources

Illinois State Breastfeeding Task Force:

U.S. Department of Labor Women’s Bureau: Employment Protections For Workers Who Are Pregnant or Nursing

Office on Women’s Health:
Supporting Nursing Moms at Work: Employer Solutions
- Business Case for Breastfeeding 

U.S. Breastfeeding Committee: 
- Resource Guide for Breastfeeding Employees and their Employers 
- Online Guide: What You Need to Know About the “Break Time for Nursing Mothers” Law 

Especially see Online Guide sections: 
- How should you store your breast milk?
- What are the space requirements?

Wage and Hour Division: Family and Medical Leave Act

Center for WorkLife Law:
Pregnant @ Work
Guide for doctors on writing work notes for nursing mothers

Equal Employment Opportunity Commission:

- Guidance: Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues

- Press release: Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

National Women’s Law Center: Fact Sheet: The Pregnancy Discrimination Act and the Amended Americans with Disabilities Act: Working Together to Protect Pregnant Workers

American Civil Liberties Union: Federal Law and Pregnant, Post-Partum and Breastfeeding Workers

A Better Balance: Babygate

This document was developed in partnership with the Illinois State Breastfeeding Task Force and Illinois Department of Public Health. Illinois Comp. Stat. ch. 820 § 260 Sec. 5-15 and Illinois Human Rights Act (775 ILCS 5/2-102) content was reviewed by the Illinois Department of Human Rights and the Illinois Human Rights Commission in September 2016. Title VII of the Civil Rights Act content is based on Equal Employment Opportunity Commission publications. Break Time for Nursing Mothers law content was reviewed by the U.S. Department of Labor, Wage and Hour Division in May 2016.