Last week Rep. Carolyn Maloney (D-NY) and Sen. Jeff Merkley (D-OR) introduced the Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244), a bill that would, among other things, amend Title VII of the Civil Rights Act to clarify that breastfeeding and expressing breast milk in the workplace are protected activities; amend the Fair Labor Standards Act (FLSA) to require large employers to provide time and privacy for lactation; and establish a tax credit for employers that provide a suitable environment for employees to breastfeed or express milk.

Specifically, the Act would include “lactation” among other protected pregnancy-related activities that were added to Title VII by the Pregnancy Discrimination Act of 1978. Additionally, this legislation would amend Section 7 of the FLSA to include the following provision:

An employer shall provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to do so. The employer shall make reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. An employer shall not be required to compensate an employee for any work time spent for such purpose.

This provision would apply to employers with 50 or more full-time employees who work 20 or more weeks in the current or preceding calendar year. An employee harmed by a violation of this section would be entitled to bring an action against her employer for equitable relief.

Employers that incur expenses in providing employees with equipment and/or an appropriate space to facilitate breastfeeding would be entitled to a tax credit under this Act. Expenditures that would qualify for the 50 percent tax credit (not to exceed $10,000 per taxable year) include purchasing breast pumps for use by lactating employees, hiring or contracting with a lactation consultant, and acquiring or leasing a suitable lactation area on the business premises.

Other provisions of this bill would require the Secretary of Health and Human Services to create a performance standard for breast pumps, and expand the Internal Revenue Code’s definition of medical care to include breastfeeding equipment and lactation services.

The House version of this bill has been referred to the House Committees on Ways and Means, Energy and Commerce, and Education and Labor. The Senate companion bill has been referred to the Senate Committee on Finance.