This new law provides that mothers are allowed to break for a reasonable amount of time whenever they need to express milk until their child is 18 months of age. The prior law had defined the break as a fixed amount of time for each four-hour segment of the work period. Under the new law, the frequency, timing, and duration of the rest period will likely vary (effective September 29, 2019).

Also, under the new law, all Oregon employers need to have a policy for lactation breaks, with smaller employers (10 or less employees) potentially qualifying for an exemption, if they can demonstrate undue hardship. Policies should specifically address how often nursing mothers are allowed to take breaks, the timing of these breaks, and the facilities available for these breaks.

If a non-exempt employee takes a lactation break at the same time as a paid rest break, the break is paid. Otherwise these breaks are unpaid.

Reasonable Efforts
Employers need to make “reasonable efforts” to provide the employee with a private location to express milk within close proximity to the employee’s work area that is concealed from view and without intrusion by other employees or the public (other than a bathroom). The space does not have to be dedicated to this use, but it must be available to nursing mothers.

Under Oregon law, an employer also must allow the employee to bring a cooler or other insulated container to store the expressed milk. If the employer allows employees to use a refrigerator onsite for personal use, the employee must be permitted, but may not be required by the employer, to use the available refrigeration to store the expressed milk.

Intersection of Oregon and Federal Law
The changes in this new law bring Oregon in line with federal law that applies to larger employers (over 50 employees). The federal rules are more generous than Oregon’s new law, so Oregon employers with 50 or more employees should not dictate when mothers take breast milk breaks. Oregon employers with less than 50 employees are not subject to the federal regulations, but should be prepared to show undue hardship if they require mothers to express milk during their regular breaks.

The statute defines an “undue hardship” as a “significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” This language matches existing rules and the language used to evaluate reasonable accommodations for disability.

Members looking for assistance developing or reviewing their policies should contact UEA Employment Law attorneys on our Employer Helpline.

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