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Breastfeeding and the law

March 27th, 2014 11:15 am by Becky Flora-Waterman

Breastfeeding and the law

Did you know that breastfeeding legislation exists? Indeed, there are actual laws to protect certain aspects of breastfeeding. Let's take a look at what the state legislatures of Tennessee, North Carolina and Virginia have to say about a woman's right to breastfeed.

Tennessee's first breastfeeding legislation was passed in 1999 and provided for a new mother to be granted unpaid break time to pump her breast milk for her baby. It also required employers to make a reasonable effort to provide a private place for pumping, besides a bathroom stall, located close to the employee's normal work area.

Tennessee first enacted a law to protect public breastfeeding in 2006. That law originally stated that a mother had the right to breastfeed her infant younger than the age of 12 months in any private or public location that she had a right to be. It clarified that public breastfeeding should not be defined as public indecency, nudity or as a sexual act (hard to believe that we had to enact a law to proclaim that last one). In 2011, that law was amended to include children of any age, not just those younger than 12 months. This was a big victory for extended nursing of children past infancy and into toddlerhood and beyond. The amendment recognized that there are continued health and emotional benefits to nursing past the age of 1 and aligned itself with the current recommendations of the American Academy of Pediatrics (AAP) and the World Health Organization (WHO), both of which support long-term breastfeeding.

North Carolina has enacted one piece of breastfeeding legislation which goes back to 1999. The law states that a woman has the right to breastfeed in any private or public place and protects her from any indecent exposure charges.

Virginia has enacted four laws pertaining to breastfeeding. In 1994, its legislature passed a law protecting nursing mothers from public indecency charges. In 2002, a law was passed which encouraged employers to give new mothers unpaid break time to pump breastmilk while at work and to provide an appropriate place for them to do so. 

Again in 2002, the Virginia State Legislature protected a woman's right to breastfeed on state property. It also included breastfeeding and the pumping of breastmilk in the category of medical conditions related to childbirth. In 2005, Virginia went a step further to promote breastfeeding and provided that a woman could request exemption from jury duty if she was currently breastfeeding a child.

Federal laws also exist to protect and promote breastfeeding. Most recently, the Affordable Care Act, also sometimes referred to as Obamacare, included additional federal legislation to promote breastfeeding. Signed in 2010, the law amended the Fair Labor Standards Act of 1938 by providing for a woman's needs to pump breastmilk while at work. 

The law requires an employer of more than 50 employees to allow a woman with an infant younger than 1 to have as much unpaid time as she needs to pump milk for her baby during her work day. The employer must also provide a place for the mother to pump, other than a bathroom stall, and in close proximity to her normal work space. The federal law would not preempt any state law that might provide for greater protection of the breastfeeding employee.

The act also requires insurance companies to provide a breastpump to all nursing mothers as well as lactation support in the form of counseling and/or care from trained lactation professionals. The law is vague in regards to the type of pump that might be covered as well as to who is considered a lactation professional. The following is a summary of how the act may allow for these breastfeeding support services. It is provided by Medela, a nationally recognized manufacturer of breastpump and other breastfeeding-related products:

* 77 percent of insurance companies will now provide hospital-grade breastpump coverage, although pre-authorization may be required as well as a prescription

* 89 percent of insurance companies provide a breastpump of some sort after the baby's birth. Some companies specify what type of pump and where it can be purchased or rented.

* 60 percent of insurance companies allow for pump upgrades. Tthe mother must pay the difference.

* 76 percent of insurance companies provide flexibility. For example, a mother may need a pump emergently and her insurance company may provide for her to purchase a pump in a store convenient for her and reimburse her for the purchase after the sell

* 96 percent cover lactation support. Pre-authorization may be required and only certain providers may be covered.

As you can tell, the provisions are ambiguous in places. For this reason, all mothers should know their insurance policy well as it pertains to breastfeeding allowances. Early to middle pregnancy is the best time to seek clarification. 

Additionally, the Affordable Care Act does not require those insurance companies who are "grandfathered" to abide by these requirements. Mothers can find out if their insurance company is a "grandfathered" one simply by asking the company as all companies must divulge their "grandfathered" status.

For information on breastfeeding laws in states other than those discussed, visit: http://www.ncsl.org/research/health/breastfeeding

For more information from Medela about the Affordable Care Act and how it provides for breastfeeding as well as tips on obtaining insurance coverage, visit http://www.medelabreastfeedingus.com/tips-and-sol

To read the Affordable Care Act's FAQ page on breastfeeding-related insurance benefits, follow this link: https://www.healthcare.gov/what-are-my-breastfeed

Becky Flora-Waterman, RN, CMSRN, IBCLC, BSed, is a registered nurse, lactation consultant, wife, daughter and mother of five children. She is also a breast cancer survivor. Email her at breastfeed@yahoo.com.

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