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Breaks: Rest Periods for Expression of Breast Milk
Under House Bill 2593​ (2019), the Oregon Legislature expanded the protections of ORS 653.077 for employees with a need to express milk. The new law also reduces the size of an employer eligible to assert an exemption to the law because of an undue hardship.
 
Effective September 29, 2019, Oregon employers will need to provide a reasonable rest period to express milk each time the employee has a need to do so. Prior law had defined the break as a fixed amount of time for each four-hour segment of the work period. Under the new language, the frequency, timing and duration of the rest period will likely vary.

The obligation to provide reasonable rest periods to express milk falls on all Oregon employers though employers of 10 or fewer employees may assert an exemption if providing the break would impose an undue hardship. As before, state law protection covers both hourly and salaried exempt executive, administrative or professional employees.

In addition, Oregon employers must still make reasonable efforts to provide an appropriate location for employees to express milk in private.

Finally, employers should also be aware that effective January 1, 2020, House Bill 2341 (2019) requires employers of six or more employees to make reasonable accommodations for known limitations relating to pregnancy​, childbirth or a related medical condition, including lactation. Potential accommodations under this requirement would not be limited to more frequent or longer break periods or periodic rest. Covered employers will also need to consider whether other accommodations may be appropriate, such as:
  • Acquisition or modification of equipment or devices; 
  • Assistance with manual labor; or 
  • Modification of work schedules or job assignments.

Q. How long must an employer provide additional rest breaks for the expression of milk?
 
A. Employers must provide reasonable rest periods to accommodate an employee with a need to express milk for a child until the child reaches 18 months of age.

Q. What is a “reasonable rest period”?
 
A. The revised protections are less specific than the language they replace, stating only that the employer must provide a “reasonable rest period… each time the employee has a need to express milk.” While administrative rules may clarify this somewhat, under the new statutory language, the frequency, timing and duration of the rest period will likely vary according to the needs of the employee.
 
Q. My employees get a paid 10-minute rest period. Does this mean I need to pay my employee for any additional time taken for the expression of milk?
 
A. No, although Oregon law still encourages employees to take rest breaks for the expression of milk at the same time as their regular rest and meal periods if feasible, the employer only need compensate a rest break for the expression of milk to the extent it overlaps with another paid break. 
 
Q. My employee does not want to work before or after a shift to make up the unpaid time for rest periods for the expression of milk. May I require the use of paid leave time?
 
A. No. As before, you certainly may allow the employee to work before or after the normal shift to make up the unpaid portion of the rest periods. If the employee does not make up the time, however, current rules prohibit you from requiring the use of paid leave time.

Q. How do I know if I qualify for an undue hardship to the requirement to provide reasonable rest periods for the expression of milk?

A. Employers with ten or fewer employees are not required to provide these rest periods if doing so would impose an undue hardship. 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 tracks with existing rules​ and the language used to evaluate reasonable accommodations for disability. ORS 659A.121(2). Note, however, that this is not a bright line test, employers with ten or fewer employees who do not provide additional rest periods for the expression of milk should be prepared to prove that doing so would in fact create an undue hardship.

Q. Do I need to make any alterations to my worksite for my employee to express milk?
 
A. Perhaps, employers need to make “reasonable efforts” to provide the employee with a private location within close proximity to the employee’s work area to express milk. A “private location” is a place, other than a public restroom or toilet stall, in close proximity to the employee’s work station, where the employee may express milk concealed from view and without intrusion by other employees or the public. By way of example, this could include minor modifications to an employee’s work area or perhaps adding a privacy lock to a nearby space, such as a room connected to a public restroom (like as a lounge); a child care facility; or an empty or unused office, conference room, or storage space. Note: Employers subject to federal law (50 or more employees) may not claim an undue hardship in regard to providing a private location which may not be a restroom or toilet stall for the expression of milk.

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 milk. 

July 2019

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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