Nevada Legislature Enacts New Law For Nursing Mothers

By Kamer Zucker Abbott

June 20, 2017

Assembly Bill 113, recently signed by the Governor, requires private and public employers to provide nursing mothers a reasonable break time and a clean, private place to express breast milk. Unlike the Pregnant Workers' Fairness Act where a place to express breast milk may be a reasonable accommodation, this new law expressly requires that all covered employers provide such a location to nursing mothers. These new requirements become effective July 1, 2017.

Who Is Covered?

This law provides rights and protections to one narrow group of employees:  nursing mothers of children under 1 year of age.  It applies to most public and private employers with the following limited exceptions:  

• If a private employer has fewer than 50 employees, it may be exempted if the law's requirements would impose an undue hardship on the employer, considering the size, financial resources, nature and structure of the business of the employer.
• An employer who is a contractor licensed pursuant to Nevada Revised Statutes Chapter 624 is not subject to the requirements of this law with regard to an employee who is performing work at a construction jobsite that is located at least 3 miles from the regular place of business of the employer.
• The Department of Corrections is not required to comply with this law but is encouraged to do so to the extent practicable.

What Is Required?

Covered employers are required to provide nursing mothers with children less than 1 year of age with the following:

• Reasonable break time, with or without compensation, for the employee to express breast milk as needed. "If break time is required to be compensated pursuant to a collective bargaining agreement entered into by an employer and an employee organization, any break time taken pursuant to [this requirement] by an employee which is covered by the collective bargaining agreement must be compensated."
• A place, other than a bathroom, that is reasonably free from dirt or pollution, protected from the view of others and free from intrusion by others where the employee may express breast milk.
• Protection from retaliation for exercising her rights under this law (i.e., using break time and/or the designated location to express milk, or taking any action to enforce the law, such as complaining about a violation, filing a complaint, etc.).   

If an employer determines that complying with the first two requirements will cause an undue hardship considering the size, financial resources, nature and structure of its business, the employer may meet with the employee to agree upon a reasonable alternative. If the parties are not able to reach an agreement, the employer may require the employee to accept a reasonable alternative selected by the employer.  Public employees are provided the right to appeal this decision.

What Remedies Are Available to Employees for Violations?

There are specific ways public employees may complain about and/or appeal actions taken in violation of this new law, including seeking expedited review by the Local Government Employee-Management Relations Board ("EMRB"). As to private employers, the Nevada Labor Commissioner is authorized to enforce the law and a private employer who violates this law will be guilty of a misdemeanor, subject to a civil penalty of $5,000 per violation.

What Do We Recommend?

First, determine whether you are covered. Simply having fewer than 50 employees does not exempt you from this law's requirements.  Instead, smaller employers must be able to prove that complying with this law will create an undue hardship.  A careful analysis is needed to determine whether you can use this exception.

Second, if the law applies, you will need to: 

• determine how you can give nursing mothers access to a place, other than a bathroom, that is reasonably free from dirt or pollution, protected from the view of others and free from intrusion by others where they may express breast milk.
• develop procedures for the use of this location and for ensuring that a qualified employee has sufficient break time to use this location when needed.
• modify handbooks and policies as necessary to incorporate these new requirements.
• train supervisors on the law's requirements and your policies and procedures.

 As always, we are available to assist you with the requirements of this new law.