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Senate adds breastfeeding worker protections to omnibus

An exemption would be provided for airlines, which had opposed the measure

The "option is also really good for business," said the proposal's sponsor, Sen. Jeff Merkley, D-Ore.
The "option is also really good for business," said the proposal's sponsor, Sen. Jeff Merkley, D-Ore. (Tom Williams/CQ Roll Call file photo)

The Senate overwhelmingly approved an amendment to the fiscal 2023 omnibus package that would require employers to provide extra time and space for workers to breastfeed on the job — a provision that’s been held up due to opposition from the airline industry.

The original bill would mandate that employers provide nursing workers with a designated breastfeeding space other than a bathroom as well as “reasonable break time” to breastfeed, lasting for up to a year after the child’s birth.

The amendment, which was subject to a 60-vote threshold, was approved 92-5. The Senate later voted 68-29 to pass the omnibus spending bill, paving the way for the House to clear the legislation ahead of government spending running out at midnight on Friday. 

“We must make it possible for every new mom returning to the workplace to have the option to continue breastfeeding. That option is also really good for business,” said Sen. Jeff Merkley, D-Ore., sponsor of the Senate version. “With this bill, parents will be empowered to make their own choices on breastfeeding, and businesses can improve retention of valuable employees.”

The measure has won bipartisan support in Congress for including provisions to ease the burden on employers. One provision would give employers a 10-day window to improve nursing spaces for workers before employees can seek relief from the courts, while another would exempt employers with less than 50 employees where compliance would present an “undue hardship.” 

Although the House version of the bill passed the chamber in October 2021, the measure has been delayed in the Senate as Merkley tried to rally more GOP support. 

But collecting those votes became more challenging as the airline industry began lobbying against the measure.

Airline advocates said that the industry already struggled to implement breastfeeding provisions in the 2010 health care law, which requires employers to provide a clean, private space for breastfeeding but left out millions of salaried employees in its language.

The industry argued its unique working environments would make it difficult to comply with Merkley’s legislation. 

But the final text includes language that would exempt airlines both from providing crew members with in-flight breastfeeding accommodations and from state laws mandating such accommodations. The rail industry, which also expressed concerns with language in the bill in the past, is not completely exempt from the mandates but has some protections such as not having to retrofit rail cars. 

‘Unique’ duties

“In-flight crew duties are inherently unique,” said Hannah Walden, communications manager for industry group Airlines for America. “The ability to perform both routine and emergency safety functions throughout the entire duration of a flight is fundamental to the jobs of both pilots and flight attendants. We are pleased [the bill] includes a distinction for these safety-critical employees.”

The bill had been slowly gaining support not only in Congress but also from the Chamber of Commerce and other industries that were originally against it, including the railroads. 

The legislation “is a win-win for nursing mothers and the businesses that employ them. Employers would get clarity and a way to avoid litigation, and nursing mothers would be able to remain in the workforce,” the Chamber of Commerce wrote in a letter to Congress. “The Chamber is pleased to strongly support this legislation.”

Merkley attempted to win unanimous consent for the chamber to proceed to the bill on Wednesday but was blocked by Sen. Rand Paul, R-Ky., who attempted to add an amendment requiring a study on the severity of the problem, particularly expressing concern for motor coach driver accommodations.

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