Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1696590948161.pdf (United States)
Written Statement of Nikia Sankofa Executive Director of the U.S. Breastfeeding Committee Before the Subcommittee on Health, Employment, Labor, and Pensions and Subcommittee on Workforce Protections, United States House of Representatives Joint Hearing: Expecting More: Addressing America’s Maternal and Infant Health Crisis January 28, 2020 Good morning.

Thank you for the opportunity to participate in this hearing on improving maternal and infant health outcomes.
Focusing mainly on reducing racial and ethnic health disparities, my public health work encompasses a broad range of functions from program design, monitoring and evaluation; data management and analysis; advocacy; and delivery of training and technical assistance.

My educational background includes a Bachelor of Science in Chemistry, a Master of Public Affairs, and a Master of Public Health with a concentration in Women's Reproductive Health.
I currently serve as Executive Director of the United States Breastfeeding Committee, a coalition of more than 100 organizations that support its mission to drive collaborative efforts for policy and practices that create a landscape of breastfeeding support across the United States.

It is an honor to bring to this committee the insights that I have gained from two decades of public health work at the community, state, and national levels.
In this testimony, I will discuss known barriers to breastfeeding success in the United States; how policies, systems, and environmental changes impact breastfeeding rates; and, a straightforward policy solution to dismantle obstacles to optimal breastfeeding that this committee can impact.

How Breastfeeding Impacts Health Outcomes Breastfeeding is the biological norm for infant feeding.
It is a proven primary prevention strategy, building a foundation for life-long health and wellness, and adapting over time to meet the changing needs of the growing child.i The evidence for the value of breastfeeding to children's and women's health is scientific, robust, and continually being reaffirmed by new research.
Breastfeeding is proven to reduce the risk of a range of illnesses and conditions for infants and mothers.ii Compared with formula-fed children, breastfed infants have a reduced risk of ear, skin, stomach, and respiratory infections; diarrhea; sudden infant death syndrome; and necrotizing enterocolitis.
In the longer term, breastfed children have a reduced risk of obesity, type 1 and 2 diabetes, asthma, and childhood leukemia.iii Women who breastfed their children have a reduced long- term risk of type 2 diabetes, cardiovascular disease, and breast and ovarian cancers.iv For all these reasons, every major medical authority, including the Department of Health and Human Services, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, and World Health Organization recommends exclusive breastfeeding for the first six months of life followed by continued breastfeeding as complementary foods are introduced for at least the first year of life.
Barriers to Breastfeeding Success Results from the CDC's most recent National Immunization Survey indicate that the vast majority of families choose to breastfeed in the United States.v However, U.S. policies, systems, and community and cultural environments inform a family's capacity to choose breastfeeding.vi While 83 percent of babies receive breast milk at birth, only 25 percent of U.S. infants are still exclusively breastfed at six months of age.vii Furthermore, a distressing 60 percent of mothers report that they did not breastfeed for as long as they intended.viii For many families, rather than being a matter of personal choice, infant feeding practice is informed by circumstance.
The principles of supply and demand guide human lactation.

Regular removal of milk prompts the body to produce more milk.

Establishing breastfeeding immediately after birth and maintaining milk production through frequent and regular feeding at the breast or pumping are essentials to building a successful breastfeeding relationship.
Structural and environmental barriers can make it impossible for families to establish an adequate milk supply to sustain breastfeeding at medically recommended levels.ix Health care policies and practices are critical determinants of breastfeeding outcomes.

Prenatal and postpartum care and maternity care practices at delivering hospitals influence whether and how long babies are breastfed.
As many as 75 percent of families do not have access to birthing facilities that implement evidence-based breastfeeding practices, and non-optimal maternity care practices in the context of breastfeeding can disrupt early feeding and undermine breastfeeding.

Too often, parents return home after birth unprepared and unsure of where to go for support.

Many families depend on lactation support and counseling as well as supplies such as breast pumps to establish and sustain breastfeeding.
Most breastfeeding-related problems, if identified and treated early, need not pose a threat to successful continuation.

Unfortunately, many do not have access to the breastfeeding support they need and deserve to address questions and make informed decisions.

Despite the importance of breastfeeding for population health, many health care providers receive limited training in lactation management.
In addition, a lack of support in community and employment settings can stand in the way of continued breastfeeding.
The U.S. is one of only three countries that does not guarantee paid leave for new mothers.x Only 19 percent of the workforce has any paid family leave through an employer.xi The Family and Medical Leave Act provides for unpaid leave, but about 40 percent of the workforce is not eligible.xii Many parents return to work quickly after birth, before a strong breastfeeding relationship is established because they cannot afford to take unpaid leave or because they do not qualify for federal legal protections.
More than half of mothers enter or return to the labor force before their children turn one year old,xiii with as many as one in four women returning within just two weeks of giving birth.xiv When back at work or school, many people discover that they are unable to pump breast milk as frequently as necessary or they have no choice but to pump in an unsanitary or unsafe location, such as a bathroom or room without a locked door.
Economically-marginalized women and non-white women are more likely to return to work earlier than their more affluent white counterparts, and they are more likely to have jobs that make it challenging to continue breastfeeding.xv Without needed accommodations, they are too often unable to produce enough milk for a caregiver to feed their child during separations and may not be able to maintain their milk supply.
Breastfeeding families throughout the United States are facing barriers that make it difficult or impossible to start or continue breastfeeding – but it does not have to be this way.
How Policies, Systems, and Environmental Changes Impact Breastfeeding Rates The great majority of pregnant women and new parents want to breastfeed, but significant barriers in the community, health care, and employment settings can impede breastfeeding success.xvi Maternal, infant, and child health outcomes, including breastfeeding rates, are impacted by issues of intersectionality, including historical, cultural, social, economic, political, and psychosocial factors.xvii .
Policy changes are necessary to influence upstream determinants of health and deconstruct barriers that inequitably compromise the capacity of many families to achieve their full health potential.
Inequities in the social determinants of health in communities of color and in economically marginalized communities contribute to stark inequities in breastfeeding initiation, duration, and exclusivity rates.xviii National Immunization Survey data for infants born in 2015 shows that the rate of exclusive breastfeeding at age 3 months was 53 percent among white infants but only 36 percent among black infants.xix Families of color are disproportionately impacted by structural barriers to breastfeeding and a lack of systemic interventions to protect, promote, and support breastfeeding in the communities where they work and live.
For example, maternity care facilities in zip code areas with a higher population of black residents were significantly less likely than facilities in zip code areas with fewer black residents to follow recommended maternity care practices that support breastfeeding.xx Similarly, there are significant disparities in access to paid family leave among racial groups.xxi The decisions of policymakers have a drastic impact on the overall American experience, including their health experience.
Policy, systems, and environmental change strategies are designed to promote healthy behaviors by ensuring that healthy choices are the achievable and easy choices.xxii By ensuring that decisions are considered through a public health lens and informed by stakeholders across sectors and across the nation, we have the opportunity to create a landscape of breastfeeding support.
Public health initiatives, including legal and policy interventions and approaches designed to enable more infants to breastfeed, have the potential to markedly improve population health.

We know that these strategies are effective.

In recent decades, attention and adaptation of the policies and infrastructure surrounding families has resulted in significant increases in breastfeeding rates.
The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) serves roughly 7.3 million low-income mothers, babies, and young children at nutritional risk across the United States.xxiii In 2004, WIC launched their breastfeeding peer counselor program to help women initiate and continue breastfeeding by offering breastfeeding education, support, and role modeling.xxiv In 2007 only 2 percent of babies were born in hospitals that had optimal policies and practices that support mothers who want to breastfeed.
Today, over 1 million babies—more than 26 percent of all births in 2018—occur in Baby-Friendly designated hospitals.

In 2010, the first federal law to protect the right to lactation accommodations in the workplace was passed.

Thanks to these policy changes, breastfeeding initiation has increased from 73.8 percent in 2007 to the current rate of 83.2 percent.

Over that same time period, exclusive breastfeeding at 6 months has increased from 11.3 percent to 24.9 percent.
These increases are astounding – but our work is not finished yet.

The vast majority of people become parents during their lifetime, and their needs are neither surprising nor difficult to meet if we plan appropriately.

With this testimony, I hope to shed a light on the most urgent needs faced by today's breastfeeding families and highlight a simple, bipartisan policy opportunity within this committee's jurisdiction that can create a world of difference for breastfeeding families.
Many national initiatives are underway to alleviate these barriers, and you each have a critical role to play in ensuring that we continue to make progress toward national health objectives and improving the lives of families across the country.

Together we can create laws and policies that can enable women to initiate and sustain breastfeeding successfully through the first year of life.
The solutions are clear and cost-effective, and this committee has an essential role in making those solutions a reality so that for families, the healthiest choice is the easiest choice.

Policy Solutions to Eliminate Barriers to Breastfeeding Success A simple and common-sense policy solution to address workplace barriers to breastfeeding is the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.
Introduced with bipartisan support, the PUMP for Nursing Mothers Act would support breastfeeding employees across the nation by strengthening the existing Break Time for Nursing Mothers law.
The Break Time for Nursing Mothers law (Break Time law), passed in 2010, provides critical protections to ensure that employees have reasonable break time and a safe, private place to pump breast milk.xxv Unfortunately, the placement of the law within the section of the Fair Labor Standards Act that sets overtime resulted in 9 million womenxxvi — nearly one in four women of childbearing age — being excluded from coverage and as such they have no clear right to break time and space to pump breast milk.
Those left unprotected include teachers, software engineers, and many nurses, among others.

Thankfully, many of these employees are protected under state level legislation.

More than half of all states have enacted legislation that impacts breastfeeding employees.xxvii For many of these states, the PUMP for Nursing Mothers Act would have little to no impact on employer requirements.
Without these protections, breastfeeding employees face serious health consequences, including risk of painful illness and infection, diminished milk supply, or inability to continue breastfeeding.
According to a recent report from the University of California's Center for WorkLife Law, the consequences of this coverage gap also include harassment at work, reduced wages, and job loss, putting some new mothers in the position of risking their family's economic security by attempting to continue breastfeeding and working.xxviii The PUMP for Nursing Mothers Act would strengthen the 2010 Break Time law by: • Closing the coverage gap.
The bill would protect the 9 million employees excluded from the 2010 Break Time law by extending the law's protections to cover salaried employees as well as other categories of employees currently exempted from protections.

• Providing employers clarity on when pumping time must be paid and when it may be unpaid.
The bill leaves in place existing law protecting many salaried workers from having their pay docked, and it clarifies that employers must pay an hourly employee for any time spent pumping if the employee is also working, a common occurrence for many employees.

• Providing remedies for nursing mothers.


The bill would ensure that nursing mothers have access to remedies that are available for other violations of the FLSA, bringing this law into alignment with other requirements that are familiar to employers.

No matter where they are or what they are doing, breastfeeding parents must feed their babies or express breast milk every few hours.
This is necessary in order to maintain their milk supply, ensure there is adequate milk to meet their baby's nutritional needs, and avoid pain or serious infection.

Breastfeeding mothers who return to work should not have to struggle to find time and space to express milk, risking their milk supply and thereby their ultimate breastfeeding success.
Businesses of all sizes and in every industry have found simple, cost-effective ways to meet the needs of their breastfeeding employees as well as their business.

The Department of Health and Human Services (HHS) Office on Women's Health hosts the Supporting Nursing Moms at Work resource,xxix which provides a critical link between the need for workplace support for breastfeeding families and the need for implementation guidance for their employers.
The online resource provides a user-friendly tool that employers can easily navigate to identify and implement industry-specific solutions to providing time and space accommodations.

These examples are already helping employers and employees identify practical solutions that work for their industry and for their workspace so that they are in compliance with the Break Time for Nursing Mothers law.

The accommodations range widely.

Fast food restaurants have different considerations than construction sites.
The Break Time for Nursing Mothers provision is written with language that provides immense flexibility in recognition of these differences and does not require the construction of a permanent, dedicated lactation space.

The PUMP for Nursing Mothers Act would maintain this flexibility.

What does this mean on a practical level?

A breastfeeding employee must pump about as often as the baby usually eats.
This means that generally speaking employees will need to pump their milk about every 3 hours every day during the workday.

According to the HHS Business Case for Breastfeeding it usually takes around 15-20 minutes to pump breast milk, plus the time it takes to travel to the pumping space, set up and clean supplies, and store the pumped milk.xxx Under the existing Break Time law, breaks do not need to be paid with paid breaks.

express breast milk, the time must be compensated as work time.
Many employers allow workers the flexibility to come in early or stay late to make up for unpaid break time.

If a nursing employee is not completely relieved from duty during a break to xxxi unless they are concurrent xxxii Providing staff coverage when employees are taking a pumping break can be handled in a variety of ways.

In many businesses, workers cover for one another or the supervisor or manager may provide coverage when an employee needs to be away from the workstation.
Some businesses employ designated floaters to provide coverage when an employee is taking a break or will adjust an employee's work schedule to accommodate her needs.

All the same strategies that businesses use for any other type of break time, such as rest breaks, meal breaks, or medical breaks can be utilized to support breastfeeding employees.

In non-traditional work settings, creative solutions are making it possible for employees around the nation to continue breastfeeding after returning to work.
Transportation employees are given a slightly different route that can accommodate lactation breaks, or sales employees are given a different but equitable client list.

Some employees may need different duties temporarily.

For example, a bulletproof vest worn by some police officers may interfere with milk expression, and it may not be possible to find a private lactation space while on duty.

The existing Break Time law requires employers to provide a place to pump that is not a bathroom.
It must be completely private so that no one can see inside the space and no one is able to enter the space while it is being used.

To be functional, the pumping space simply needs to be furnished with seating and a flat surface such as a desk, small table, or shelf for the breast pump.xxxiii In office buildings, many businesses use a small existing office, or use cubicle partitions to create a lactation space.
Other businesses have converted closets and storage spaces to create permanent milk expression areas, with the only expenses being cleaning fees and the cost of seating and a flat surface.

Health care facilities often use a patient or exam room and retail stores often use fitting rooms.

Businesses in the same shopping mall or plaza may create a shared space that is available to employees in all of the businesses.
In outdoor worksites, pop up tents or the cab of a construction vehicle are used to meet the needs of breastfeeding employees.

In many workplaces, there is no unused space.

In that case, the employer could instead provide access to a space normally used for other things, like a manager's office or a storage area.
Alternatively, if more than one breastfeeding employee will need the space, mothers can develop a room-use schedule or the employer can install privacy curtains or dividers so that the room can be used by more than one person at a time.

To put it simply, if the space is available each time the breastfeeding employee needs it, the employer is meeting the requirements of the law.

If there are no breastfeeding employees, the employer does not need to maintain a space.
Accommodating breastfeeding employees has not been the norm, but the tide is turning.

The Society for Human Resources Management Employee Benefits Survey found that in 2009, only 25 percent of surveyed businesses had an onsite lactation room.

In 2018, that number had nearly doubled to 49 percent.xxxiv Implementation of the Break Time for Nursing Mothers law has shown that by working ahead of time to find solutions, the needs of businesses and breastfeeding employees can be easily anticipated and met.
In fact, according to the HHS Business Case for Breastfeeding, employers that provide lactation support see an impressive return on investment (almost 3:1), including lower health care costs, absenteeism, and turnover, and improved morale, job satisfaction, and productivity.xxxv If providing break time and a private, non-bathroom space is truly not possible, causing significant difficulty or expense, an employer with 50 or fewer employees may raise an undue hardship defense in the event of an investigation from the Department of Labor.
Despite the critical necessity of breastfeeding accommodations and the flexibility of the law's requirements, research shows that 40 percent of breastfeeding employees do not have access to both break time and a private non-bathroom space to pump during the workday.xxxvi A significant gap that has surfaced is the lack of remedial measures related to the Break Time law.

Little recourse is available for employees who are covered by the Break Time law to ensure they can use their rights.
If an employer refuses to comply, a breastfeeding worker can file a complaint with the Department of Labor Wage and Hour Division, which will then begin an investigation.

If the investigation finds that an employees’ rights were denied, the Wage and Hour Division (but not the employee) can go to court to obtain an order requiring the employer to comply.
Importantly, Section 7(r) of the FLSA does not specify any penalties if an employer is found to have violated the break time for nursing mothers requirements.

This means that in most instances, an employee may only bring an action for unpaid minimum wages or unpaid overtime compensation and an additional equal amount in liquidated damages.
According to the Request for Information on the Break Time for Nursing Mothers provision, which includes the Department of Labor’s preliminary interpretations of the law, “Because employers are not required to compensate employees for break time to express breast milk, in most circumstances there will not be any unpaid minimum wage or overtime compensation associated with the failure to provide such breaks.”xxxvii The Center for WorkLife Law report, “EXPOSED: Discrimination Against Breastfeeding Workers” describes the practical implications.
Nearly all legal claims that an employer failed to provide break time and space have been thrown out of court.xxxviii Since the passage of the Break Time law, only two claims have been allowed to proceed on the theory that the lactating employees in those cases suffered lost wages as a result of the break time violation.

The report describes the case of an Emergency Medical Technician who was fired for requesting break time and space.
The judge in that case stated that “While the Court is sympathetic to Plaintiff’s argument that this renders [the Nursing Mothers law] ineffective, there is no support from the case law or DOL [Department of Labor]” to provide a remedy.xl xxxix In the event that an employee is fired or discriminated against as a result of filing a complaint or cooperating in an investigation, they may file a retaliation complaint with the Wage and Hour Division or a private cause of action.xli In this extremely limited circumstance, an employee may be able to make the case for a meaningful monetary settlement.
Without a strong enforcement mechanism, employers do not fear the consequences of noncompliance.

The PUMP for Nursing Mothers Act would ensure that remedies that are available for other violations of the FLSA are also available if an employer does not provide break time and a private space to ensure consistency of the law.
Over the past decade we have learned how to make breastfeeding and employment work, but the significant coverage gaps in the Break Time for Nursing Mothers law mean that workplace breastfeeding accommodation implementation is radically inconsistent.

Employees of the same company and in the same building frequently do not have access to the same accommodations, and to figure out who must be accommodated can be complicated for businesses.
The employees that fall between the cracks are left to choose between breastfeeding and their paycheck.

That is why the PUMP for Nursing Mothers Act represents the next critical step toward bringing federal legislation into alignment with the needs of our nation's families and their employers.

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