SB 219 Amendment 1
Prepared by Kate Frederick
with the assistance of the NH Citizens Alliance, A Better Balance, Attorney Ben King, The NH Breastfeeding Rights Coalition, Breastfeeding USA & the United States Breastfeeding Coalition.
Presented to: the NH Senate Commerce Committee on 2/17/15
Amend the bill by replacing all after the enacting clause with the following:
1 Breastfeeding. RSA 132:10-d is repealed and reenacted to read as follows:
I. Breastfeeding a child shall not constitute indecent exposure and to restrict or limit the right of a mother to breastfeed her child is discriminatory. A mother may breastfeed her child in any location where she is authorized to be. No person or entity, including a governmental entity, shall restrict, censor, harass, or penalize a mother who is breastfeeding her child, require a mother to leave the premises, direct a mother to a different location to breastfeed her child if the mother is otherwise authorized to be in her current location, direct a mother to cover her child while breastfeeding, or otherwise restrict a mother from breastfeeding her child.
Other states that already have similar laws-
- Forty-six states, the District of Columbia and the Virgin Islands have laws that specifically allow women to breastfeed in any public or private location. NH is already included in this list. (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin and Wyoming.)
- Twenty-nine states, the District of Columbia and the Virgin Islands exempt breastfeeding from public indecency laws. (Alaska, Arizona, Arkansas, Florida, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wisconsin and Wyoming.)
II. A civil action for equitable relief may be brought under this section by a mother subjected to a violation at any time within 3 years of the occurrence of the violation. In any such action, the court may:
(a) Award a civil penalty in an amount not to exceed $500;
(b) Enter an order to restrain conduct prohibited under paragraph I;
(c) Award reasonable attorney fees; and
(d) Award compensation for any damages arising from the violation.
2 New Chapter; Breastfeeding; Employer Responsibilities. Amend RSA by inserting after chapter 275-F the following new chapter:
Breastfeeding; Employer Responsibilities
275-G:1 Definitions. In this chapter:
I. “Department” means the department of labor.
II. “Express milk” means the act of extracting human milk which can be accomplished by hand, pump, or breastfeeding a nursing child.
III. “Employer” means an individual, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, governmental entity, and any common carrier who employs any person. “Employer” shall also include any person acting in the interest of an employer directly or indirectly.
275-G:2 Time and Space to Express Milk.
I. Employers shall allow employees adequate unpaid or paid break time to express milk while the mother is lactating. Employers shall allow mothers direct access to their infants where the worksite can safely accommodate this. If the workplace cannot safely accommodate this, then a mother and her employer shall work together to allow for the mother to leave the workplace for the purpose of expressing milk in a nearby location.
Six other states already have similar laws-
- Okla. Stat. tit. 40, § 435 (2006) requires that an employer provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her child.
- 3 L.P.R.A. § 1466 and 29 L.P.R.A. § 478a et seq. provide that breastfeeding mothers have the opportunity to breastfeed their babies for half an hour within the full-time working day for a maximum duration of 12 months.
- R.I. Gen. Laws § 23-13.2-1 (2003) specifies that an employer may provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her infant...
- Va. Code § 2.2-1147.1 (2002) guarantees a woman the right to breastfeed her child on any property owned, leased or controlled by the state. The bill also stipulates that childbirth and related medical conditions specified in the Virginia Human Rights Act include activities of lactation, including breastfeeding and expression of milk by a mother for her child. (HB 1264)
- California employers to support and encourage the practice of breastfeeding, by striving to accommodate the needs of employees, and by ensuring that employees are provided with adequate facilities for breastfeeding and expressing milk for their children.
- The location may include a childcare facility in close proximity to the employee's work location. (2007 D.C. Stat., Chap. 17-58; B 133)
II. An employer shall provide a sanitary room, area, or other location, other than a bathroom or toilet stall, where an employee can express her milk in privacy, safely, and protected from weather. The lactation space shall have, either in the room where it is located or nearby, access to a sink, refrigerator or cooler, and an electrical outlet.
Other states that already have similar laws-
- Twenty-five states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace. (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming.)
An employer shall not retaliate or discriminate against an employee who exercises or attempts to exercise the rights provided under this chapter. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel, or otherwise retaliate or discriminate against any person because she has opposed any practices forbidden under this chapter or because she has filed a complaint, testified, or assisted in any proceeding under this chapter.
275-G:4 Posting of Notices; Violation.
Every employer shall post such notices as are prescribed by the commissioner of labor to keep the employer’s employees informed of their protections under this chapter. The commissioner of labor shall adopt rules, under RSA 541-A, relative to the form, content, and placement of such notices. Failure to comply with the provisions of this section or rules adopted by the commissioner of labor shall be a violation for each day of noncompliance.
275-G:5 Rights and Remedies.
The department may subject any employer violating this section to a civil penalty of $500 for each offense. A civil action may also be brought in any court of competent jurisdiction under this paragraph by a mother subjected to a violation of this section at any time within 3 years of the occurrence of the violation. In any action brought the court may award actual damages, enter an order to restrain conduct, and award reasonable attorneys fees. Any moneys received as penalties under this section shall be deposited in the breastfeeding awareness fund, established in RSA 275-G:6. A violation of this section shall also constitute an unlawful discriminatory practice under RSA 354-A:7, and any party alleging a violation of this section may file a complaint with the state commission for human rights.
Other states that already have similar laws-
- R.I. Gen. Laws § 23-13.5-1 and § 23-13.5-2 (2008) allow a woman to feed her child by bottle or breast in any place open to the public and would allow her a private cause of action for denial of this right. (2008 R.I. Pub. Laws, Chap. 223 and Chap. 308, HB 7467 and SB 2283)
2012 Cal. Stats., Chap. 701 amends the California Fair Employment and Housing Act that states it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of sex. The law provides that the term “sex” also includes breastfeeding or medical conditions related to breastfeeding. (AB 2386)
There is hereby established in the office of the state treasurer a fund to be known as the breastfeeding awareness fund. Such fund shall be the depository of all moneys received under RSA 275-G:5. All moneys in such fund shall be nonlapsing and continually appropriated to the department of labor for the purpose of promoting breastfeeding awareness in New Hampshire.
275-G:7 Advisory Council.
I. There is hereby established an advisory council on breastfeeding. The advisory council shall follow the goals of the United States Surgeon General and the United States Breastfeeding Committee. The advisory council shall be comprised of, but not limited to:
(a) One member of the house of representatives, appointed by the speaker of the house of representatives.
(b) One member of the senate, appointed by the senate president.
(c) The commissioner of the department of labor, or designee.
(d) A representative from the women, infants, and children program (WIC), appointed by the commissioner of the department of health and human services.
(e) A certified midwife, appointed by the midwifery council established in RSA 326-D:3.
(f) A member of the New Hampshire chamber of Commerce, (BIA) appointed by that organization.
(g) The president of the New Hampshire Breastfeeding Rights Coalition, or designee.
(h) A hospital administrator from a certified baby-friendly hospital, appointed by the governor.
(i) A transportation representative, appointed by the governor.
(j) A currently breastfeeding mother, appointed by the governor.
II. The advisory council shall examine best practices in New Hampshire, including but not limited to the Baby Friendly Hospital Initiative, Family and Sick Leave, Childcare Trainings on Breastfeeding, Milk Banks, Lactation Spaces in Public Accommodations, and the World Health Organization’s International Code of Marketing of Breastmilk Substitutes.
III. Legislative members shall receive mileage at the legislative rate while attending to the duties of the commission.
IV. The advisory council may meet as often as necessary to effectuate its goals and meetings may be held by conference call. A minimum of 3 meetings per year shall be open to the public.
V. The advisory council shall make an annual report commencing on December 1, 2015 on its activities and findings, together with any recommendations for proposed legislation, to the president of the senate, the speaker of the house of representatives, and the governor.
3 State Commission for Human Rights; Express Milk in the Workplace. Amend RSA 354-A:2, XIV-b(a) and (b) to read as follows:
(a) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities and those with needs related to pregnancy, childbirth, and related conditions.
(b) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities and those with needs related to pregnancy, childbirth, and related conditions.
4 State Commission for Human Rights; Express Milk in the Workplace. Amend RSA 354-A:7, VI to read as follows:
VI.(a) For the purposes of this chapter, the word “sex” includes pregnancy and medical conditions which are related to pregnancy, including, but not limited to, lactation.
(b) An employer shall permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions. When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable. An employer shall conform to the provisions of RSA 132:10-d and RSA 275-G. An employer shall permit an employee paid or unpaid leave time for the purposes of the provisions of 275-G.
(c) An employer shall grant reasonable accommodations for any known need of a job applicant or employee related to pregnancy, childbirth, or related conditions, if the
employee or applicant requests, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business. It shall be an unlawful discriminatory practice for an employer to deny employment opportunities, compensation, terms, conditions, or privileges of employment to a job applicant or employee, if such denial is based on the need of the employer to make accommodations to the known needs of the applicant or employee related to her pregnancy, childbirth, or related condition.
(d) For all other employment related purposes, including receipt of benefits under fringe benefit programs, pregnancy, childbirth, and related medical conditions shall be considered temporary disabilities, and a female employee affected by pregnancy, childbirth, or related medical conditions shall be treated in the same manner as any employee affected by any other temporary disability.
5 New Section; Exemption From Jury Duty.
Amend RSA 500-A by inserting after section 5 the following new section:
500-A:5-a Nursing Mothers; Exemption From Jury Duty. Any nursing mother shall, upon her request, be excused from jury duty.
Other states that already have similar laws-
- Sixteen states and Puerto Rico exempt breastfeeding mothers from jury duty or allow jury service to be postponed. (California, Connecticut, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Oregon, South Dakota and Virginia.)
6 New Subparagraph; Application of Receipts.
Amend RSA 6:12, I(b) by inserting after subparagraph (326) the following new subparagraph:
(327) Moneys received under RSA 275-G:5 which shall be credited to the breastfeeding awareness fund, established in RSA 275-G:6.
7 Repeal. RSA 275-G:7, relative to an advisory council on breastfeeding, is repealed.
8 Effective Date.
I. Section 7 of this act shall take effect December 1, 2018.
II. The remainder of this act shall take effect upon its passage.