Employee handbooks should reflect new lactation break law

Effective July 1, 2025, all New Hampshire employers with six or more employees will be required to provide nursing employees with 30-minute unpaid lactation breaks for every three hours of work.

The new law (RSA 275:78 through 83) will also require covered employers to provide employees with appropriate space in the workplace for nursing. This new state law follows the 2022 federal PUMP Act, which also requires employees nationwide to provide reasonable break time and private space for breastfeeding employees for the first year of a baby’s life. Covered employers must comply with both federal and state laws.

To achieve compliance with this new state law, employers are required to adopt a policy to address the provision of sufficient space and reasonable break periods for nursing employees that need to express milk during working hours. Every employer must provide employees, at the time of hire, with notice of this policy. An employee handbook is a good place to incorporate the policy.

The new law defines the “expression of milk” as “the initiation of lactation by manual or mechanical means,” and it expressly excludes “breastfeeding.” This means that employers are only required to provide a reasonable time and space for pumping breast milk. However, as always, whenever a nursing employee requests an accommodation, employers should consider what, if any, federal, state or local laws may require accommodations to enable nursing mothers to work, in addition to those required by RSA 275:78 et seq.

To satisfy the requirement of providing a “sufficient space” to express breast milk, it must be within a reasonable walk of the employee’s worksite, unless otherwise mutually agreed to by the employer and employee. It must be a clean space — not a bathroom — that is shielded from view and free from intrusion from co-workers and the public, and if feasible, it must have at a minimum an electrical outlet and a chair. If the space is not solely for the use of employees expressing milk, then the law provides that it must be made available when requested by an employee to comply with the requirements of the law.

Employees who anticipate needing to use lactation breaks are required to notify their employer at least two weeks in advance. Employers should incorporate this notice requirement into the policy so that employees are properly instructed on their obligations. Employers should also advise the employees who they should submit the request to within the company.

As noted above, nursing employees are guaranteed the right to an unpaid break to pump every three hours. However, nothing in the law precludes an employer from negotiating with an employee reasonable break periods to express milk that are different from the requirements in the law; however, both the employer and employee must agree to this different schedule. In no case may employers require employees to make up time related to the use of this break period by, for example, coming into work earlier or staying later in the day. That said, however, employees have the option of taking their break period contemporaneously with break or meal periods already provided by the employer.

The law provides a very limited exception for instances in which providing a reasonable break period and sufficient space would impose an “undue hardship” on the employer’s operations. The law defines “undue hardship” as any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation. Employers are encouraged to seek counsel if they anticipate relying on this limited exception.

New Hampshire employers are further encouraged to review their obligations under the federal PUMP Act and this new state law, as well as the recently enacted federal Pregnant Workers Fairness Act. The impact of these new laws, plus existing anti-discrimination laws, have greatly enhanced the protections for pregnant employees and new parents in the workplace. Supervisors should be trained on the requirements of these new laws so as to ensure proper communication in the workplace on employee rights and benefits.

Any employer who violates this new state law may be subject to a civil penalty.

Margaret “Peg” O’Brien is a director at McLane Middleton and chair of the firm’s Employment Law Practice Group.