Philadelphia now expressly requires both private and public employers to provide workplace accommodations for nursing mothers pursuant to an amendment to the Philadelphia Fair Practices Ordinance signed by Mayor Michael A. Nutter on September 3, 2014. The amendment, which is effective immediately, requires employers to provide employees with reasonable break times and a private, sanitary space (other than a bathroom) for expressing breast milk. Unlike the “Break Time for Nursing Mothers” provision of the Affordable Care Act (ACA) (which only applies to nonexempt employees as defined by the Fair Labor Standards Act), the Philadelphia ordinance does not distinguish between exempt and nonexempt employees. By eliminating this distinction, the ordinance makes it an unlawful employment practice for a Philadelphia employer to fail to reasonably accommodate any nursing mother (exempt and nonexempt alike).
What is required of Philadelphia employers under the ordinance?
Specifically, the amendment states:
"[i]t shall be an unlawful employment practice . . . [f]or any employer to fail to reasonably accommodate an individual’s need to express breast milk.
The amendment identifies a number of possible accommodations that may be required, including but not limited to:
providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk; and
providing a private, sanitary space that is not a bathroom where an employee can express breast milk.
Who is considered an employer under the ordinance?
The Philadelphia Fair Practices Ordinance defines an employer “as any person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse or children, including any public agency or authority. . . .”
May an employer lawfully deny an accommodation request?
Yes; an employer will not be required to provide an accommodation to a nursing mother if the accommodation would cause an undue hardship on the employer’s operations. The burden is on the employer to prove undue hardship.
What steps should Philadelphia employers take to ensure compliance with the ordinance?
Employers with operations in Philadelphia should immediately revise their workplace policies and procedures to reflect the new requirements included in the ordinance and train managers and human resources professionals on the changes. Although the ordinance does not specify the length of the breaks or how often breaks must be given per day, employers should err on the side of caution and grant as much time as necessary.