Review of Texas Breastfeeding Rights
In addition to national statutes, including the Affordable Care Act which can provide some level of breastfeeding protection in a variety of contexts, most state legislatures also recognize the need for breastfeeding facilitation as well. Under Texas state law, for example, female employees granted lactation breaks must use them, "to express milk for her infant child."
Both state law and the Affordable Care Act’s breastfeeding provisions also extend to liquid breastmilk storage in certain working environments. Of course, storage considerations are most likely to arise in the context of working mothers whose work obligations interfere with breastfeeding schedules.
Female employees taking lactation breaks must do so "at a time that "works for her" according to Texas state law. Lactation breaks must "be reasonably accommodated" and lapses of over 15 minutes are a violation of the law. In addition to the above , the state of Texas guarantees that breastfeeding mothers may not be disciplined or terminated from their employment environments because of their requests to take lactation breaks.
Beyond the workplace, state of Texas provides that mothers have the right to breastfeed in public "anywhere the mother is otherwise authorized to be." Nowhere in the law is there any indication that a breastfeeding mother might be prohibited from breastfeeding her child, regardless of whether she is present in a public or private environment.
In almost every breastfeeding context, a Texas resident must be afforded reasonable accommodations, including the right to breastfeed a child without the guilt of possible discipline or termination from employment.
The Legality of Public Breastfeeding
Any nursing mother has the right to breastfeed her child in any location in public where the mother and child are authorized to be. The Texas Health and Safety Code Section 165.003(a). A private property owner or manager may not prohibit a mother from breastfeeding her child on the property that owner or manager owns or primarily manages. Section 165.003(b). If you do attempt to ask a mother to leave a public or commercial establishment, you must offer her a private location to breastfeed.
As long as a mother, in public or commercial establishments, is "entitled to be" along with her child, she is allowed to breastfeed. Section 165.001(2). Therefore, a retail store may ask a customer to leave at any time, but that store may not ask the parents of a nursing infant to leave if the child is breastfeeding.
In Texas, except for reasonable rest […] periods and meal periods, a person in control of a building or other property, or an agent of the person in control, is not allowed through criminal sanctions or tort actions to prohibit a mother from going to any location of such building or real property that the mother is entitled to be at, in order to breastfeed. Section 165.001(3).
However, if someone does request a breast-feeding mother to relocate, a mother can be ordered to relocate to a more private location if a manager can post "clear and conspicuous signs" that state the policy. Section 165.004(a).
The law also protects a mother from being discriminated against, or being the subject of harassment, if she is breastfeeding her child in public. Section 165.002.
Breastfeeding Rights in the Workplace
Breastfeeding Laws at Work in Texas: Your Rights and Remedies as an Employee
In addition to legislative protections for breastfeeding mothers in schools, day care centers, hospitals, and general businesses, there are additional laws that apply in Texas workplaces. Broadly speaking, these laws ensure that, barring certain circumstances, employees may take unpaid time off to express milk during the workday and be provided with a place to do so. We have summarized those down below.
Multiple Texas statutes require employers to provide lactation accommodations. The Texas Health and Safety Code Section 165.002 The Texas Occupations Code section 165.002 requires "lactation accommodations" in businesses. This is fairly broadly defined and includes most employers, although this does not create any particular cause of action for employees. Likewise, it does not create an obligation to accommodate a nursing mother when doing so may affect company safety policies and practices.
The Texas Labor Code Section 28.011 Section 28.011 of the Texas Labor Code requires "lactation accommodations" from employers to employees. It requires employers to provide "reasonable break time each time the employee has need to express breast milk" and "a place, other than a restroom facility, in close proximity to the work area." The exact length or amount of these breaks is left undefined, although it does state that each of these "reasonable breaks" may run consecutively until they are met. Likewise, the place where the employee expresses the breast milk cannot be "a bathroom or toilet stall."
Further, it applies to all businesses (unless they have fewer than 50 employees), and violations are subject to penalties of up to $6,000, or if you were a repeat violator, the penalties could go as high as $10,000.
These protections for breastfeeding employees are in addition to the availability of pumping and possibly even nursing breaks under Texas law. However, Texas law does not guarantee the right to breastfeeding breaks at work. This is a matter at the discretion of the employer in the absence of the breastfeeding employee invoking these or other laws that do guarantee them.
When these protections for breastfeeding employees are violated, remedies include both injunctive relief (i.e., a court order forcing the employer to comply with the law) or damages up to $11,000. For repeat violators of the law, penalties can be doubled up to a maximum of $22,000. While some penalties apply to single violations, this is rare in Texas Courts.
Breastfeeding and Jury Duty Dismissal
Texas law recognizes the challenges that breastfeeding presents to mothers when they are summoned for jury duty. Under Texas Government Code Section 61.003, if a mother is breastfeeding on the day of her summons, she is entitled to a one-time exemption for a period of no longer than 24 months from the date her child was born. Under the statute , whether the exemption is granted is at the discretion of the court to which she was summoned. Texas Government Code 61.003. The exemption is available only if the mother files a request in writing with the clerk of the court on or before the third business day preceding the date on which the person is required to appear in response to a jury summons. In addition, the judge may have to order that a room in which a mother may nurse her child be made available in any building in which the court is located.
School Policies on Breastfeeding
In Texas, the issue of breastfeeding is not limited to the workplace; schools and universities are required to provide a similar level of support to student and faculty mothers. There are a handful of laws that specifically address the needs of nursing mothers in their educational pursuits.
The Education Code § 51.9115 requires that all Texas public school districts provide breastfeeding accommodations to student mothers. These accommodations must consist of counseling services, a designated lactation area for any student mother on campus to use, and provide support for student breastfeeding exportation programs. If a student mother chooses a covered school for her child, the school must provide a supply of donor human milk.
Higher education institutions in Texas are also subject to the same breastfeeding standards under Education Code § 51.972. Similar to public schools, higher education institutions must provide the same services that are required of K-12 schools. Students must be allowed to bring their child on campus, assistance office hours must be scheduled for expectant and new mothers, and students must be informed if there is a breastfeeding program on campus that references national best practices. The law also outlines requirements for university sponsored agencies, to ensure that students who are employees of those agencies have the same opportunity for reasonable accommodations.
Most of these requirements came into effect in 2017, so it may take some time for schools and universities to implement the required policies and procedures to ensure these laws are being upheld. If you know of any scenarios where a school or university has either refused to provide support for breastfeeding mothers, or if they have not previously met the requirements outlined above, it might be worth checking if the facilities and programs are compliant with Texas laws.
Legal Assistance and Additional Resources for Mothers
Various groups and programs support breastfeeding mothers in their legal endeavors. These range from local advocacy organizations to national coalitions that specialize in protecting breastfeeding mothers’ rights, often at no cost to the individual in need. Coalition organizations tend to have local chapters to provide the necessary access to legal support in a mother’s city.
Groups such as the Texas Breastfeeding Coalition and the Texas State Lactation Consultant Association provide legal information and advocacy as well as a variety of other resources to Texas breastfeeding mothers and their advocates. These types of advocacy groups have been known to take cases on behalf of their members, or to direct mothers to others who can assist with their various legal needs. They are also known to connect women with lactation consultants or lactation counselors, who may be able to help mothers with problems regarding breastfeeding .
The La Leche League offers similar support to breastfeeding mothers in an individual city or nearby area. La Leche has been known to provide robust legal assistance to mothers in need of help, including with the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor. While the organization does not guarantee representation, they nonetheless have been known to treat even the toughest cases on behalf of mothers who advocate for their rights.
For all Texas breastfeeding mothers, the best way to approach an unwanted situation regarding breastfeeding is to speak to an attorney immediately. Even if charges are not pressed, or the situation has already been settled, it is important to gain the knowledge necessary to avoid discrimination, harassment, or wrongful termination for breastfeeding violations.