New Mothers' Breastfeeding Promotion and Protection Act of 1998

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``New Mothers' Breastfeeding Promotion 
and Protection Act of 1998''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Women with infants and toddlers are the fastest growing 
        segment of today's labor force.
            (2) At least 50 percent of women who are employed when they 
        become pregnant return to the labor force by the time their 
        children are 3 months old.
            (3) The American Academy of Pediatrics recommends 
        breastfeeding for at least the first 12 months of a child's 
        life. The Academy also recommends that arrangements be made to 
        provide expressed breastmilk if mother and child must separate.
            (4) Breastmilk contains all the nutrients a child needs for 
        ideal growth and development (including helpful antibodies, 
        proteins, immune cells, and growth factors that can only be 
        found in breastmilk), promotes closeness between mother and 
        child, and is easy to digest.
            (5) Breastmilk is the first line of immunization defense 
        and enhances the effectiveness of vaccines given to infants.
            (6) Research studies show that children who are not 
        breastfed have higher rates of mortality, meningitis, some 
        types of cancers, asthma and other respiratory illnesses, 
        bacterial and viral infections, diarrhoeal diseases, ear 
        infections, allergies, and obesity.
            (7) Research studies have also shown that breastmilk and 
        breastfeeding have protective effects against the development 
        of a number of chronic diseases, including juvenile diabetes, 
        lymphomas, Crohn's disease, celiac disease, some chronic liver 
        diseases, and ulcerative colitis.
            (8) A number of recent studies have shown that breastfed 
        children have higher IQs at all ages.
            (9) Breastfeeding promotion and support are an integral 
        part of nutrition services provided by the Women, Infants, and 
        Children (WIC) program, and has been shown to reduce costs. For 
        example, in a recent cost-benefit study in the State of 
        Colorado, it was found that exclusively breastfeeding a WIC 
        infant saved $161 in the first 6 months of life when compared 
        to formula-fed infants. A Medicaid savings of $112 per infant 
        was realized by this group while pharmacy costs were 
        approximately 50 percent lower.
            (10) In 1997 the United States had one of the lowest 
        breastfeeding rates of all industrialized nations and one of 
        the highest rates of infant mortality.
            (11) Breastfeeding has been shown to reduce the mother's 
        risk of breast and ovarian cancer, hip fractures, and 
        osteoporosis.
            (12) Breastfeeding releases a hormone in a woman's body 
        that causes her uterus to return to its normal size and shape 
        more quickly, and reduces blood loss after delivery.
            (13) Although title VII of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e et seq.) was amended by the Pregnancy 
        Discrimination Act in 1978 to prohibit discrimination on the 
        basis of pregnancy, childbirth, or related medical condition, 
        courts have not interpreted this amendment to include 
        breastfeeding despite the intent of the Congress to include it.
            (14) Women who wish to continue breastfeeding after 
        returning to work have relatively few needs: availability of 
        suitable, dependable, efficient breast pumps; a clean, 
        convenient, safe, private, and comfortable location to express 
        milk at the worksite; the opportunity to pump their breasts 
        frequently enough to maintain their milk supply; and an 
        adequate place to temporarily store expressed milk.
            (15) Many employers have seen positive results from 
        facilitating lactation programs in the workplace, including low 
        absenteeism, high productivity, high company loyalty, high 
employee morale, and lower health care costs.
            (16) Parental absenteeism due to infant illness is 3 times 
        less among the parents of breastfed children than those that 
        are formula fed.
            (17) Worksite programs that aim to improve infant health 
        may also bring about a reduction in parental absenteeism and 
        health insurance costs.
            (18) Many women do not have available to them adequate 
        facilities for expressing milk at their workplace, and are 
        forced to pump in restrooms lacking privacy, comfort, and 
        cleanliness. Many employees do not have access to refrigeration 
        or other adequate storage facilities for expressed milk.
            (19) Many employers deny women the opportunity to 
        breastfeed or express milk. Some women have been discharged for 
        requesting to breastfeed or express milk during lunch and other 
        regular breaks. Some women have been harassed or discriminated 
        against. Some women have had their pay withheld or been taken 
        off of shift work for indicating their intention to express 
        milk during the workday.
            (20) There are numerous products on the market to assist a 
        woman in expressing milk, but not all such products are 
        effective or efficient. There have been many reports from 
        physicians and lactation consultants about breastfeeding 
        failure due to the use of ineffective breast pumps.

SEC. 3. AMENDMENT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

    Section 701(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(k)) 
is amended--
            (1) by inserting ``breastfeeding,'' after ``childbirth'', 
        and
            (2) by adding at the end the following: ``For purposes of 
        this subsection, the term `breastfeeding' means the feeding of 
        a child directly from the breast or the expression of milk from 
        the breast by a lactating woman.''.

SEC. 4. ALLOWANCE OF CREDIT FOR EMPLOYER EXPENSES FOR PROVIDING 
              APPROPRIATE ENVIRONMENT ON BUSINESS PREMISES FOR EMPLOYED 
              MOTHERS TO BREASTFEED OR EXPRESS MILK FOR THEIR CHILDREN.

    (a) In General.--Subpart D of part IV of subchapter A of chapter 1 
of the Internal Revenue Code of 1986 (relating to business related 
credits) is amended by adding at the end the following new section:

``SEC. 45D. CREDIT FOR EMPLOYER EXPENSES INCURRED TO FACILITATE 
              EMPLOYED MOTHERS WHO BREASTFEED OR EXPRESS MILK FOR THEIR 
              CHILDREN.

    ``(a) In General.--For purposes of section 38, the breastfeeding 
promotion and support credit determined under this section for the 
taxable year is an amount equal to 50 percent of the qualified 
breastfeeding promotion and support expenditures of the taxpayer for 
such taxable year.
    ``(b) Dollar Limitation.--The credit allowable under subsection (a) 
for any taxable year shall not exceed the product of--
            ``(1) $10,000, and
            ``(2) the number determined by dividing the average number 
        of full-time employees of the taxpayer during the preceding 
        taxable year by 8,000.
    ``(c) Qualified Breastfeeding Promotion and Support Expenditure.--
For purposes of this section--
            ``(1) In general.--The term `qualified breastfeeding 
        promotion and support expenditure' means any amount paid or 
        incurred in connection with a trade or business of the 
        taxpayer--
                    ``(A) for breast pumps and other equipment 
                specially designed to assist mothers who are employees 
                of the taxpayer to breastfeed or express milk for their 
                children but only if such pumps and equipment meet such 
                standards (if any) prescribed by the Secretary of 
                Health and Human Services under section 5 of the New 
                Mothers' Breastfeeding Promotion and Protection Act of 
                1998, and
                    ``(B) for consultation services to the taxpayer or 
                employees of the taxpayer relating to breastfeeding.
            ``(2) Costs of other exclusive use property included.--Such 
        term includes any amount paid or incurred for the acquisition 
        or lease of tangible personal property (not described in 
        paragraph (1)(A)) which is exclusively used by mothers who are 
        employees of the taxpayer to breastfeed or express milk for 
        their children unless such property is located in any residence 
        of the taxpayer or any employee of the taxpayer.
    ``(d) Recapture of Credit.--
            ``(1) In general.--If, during any taxable year, any 
        property for which a credit was allowed under this section is 
        disposed of or otherwise ceases to be used by the taxpayer as 
        required by this section, then the tax of the taxpayer under 
        this chapter for such taxable year shall be increased by an 
        amount equal to the recapture percentage of the aggregate 
decrease in the credits allowed under section 38 for all prior taxable 
years which would have resulted solely from reducing to zero any credit 
determined under this section with respect to such property. The 
preceding sentence shall not apply to property leased to the taxpayer.
            ``(2) Recapture percentage.--For purposes of this 
        subsection, the recapture percentage shall be determined in 
        accordance with the following table:

  
                                                          The recapture
            ``If the recapture event occurs in:
                                                         percentage is:
                Year 1...............................          100     
                Year 2...............................           60     
                Year 3...............................           30     
                Year 4 or thereafter.................           0.     
        The references to years in the preceding table are references 
        to the consecutive taxable years beginning with the taxable 
        year in which the property is placed in service by the taxpayer 
        as year 1.
            ``(3) Certain rules to apply.--Rules similar to the rules 
        of paragraphs (3) and (4), and subparagraphs (B) and (C) of 
        paragraph (5), of section 50(a) shall apply for purposes of 
        this subsection.
    ``(e) Special Rules.--For purposes of this section--
            ``(1) Aggregation rules.--For purposes of subsection (b), 
        all persons which are treated as a single employer under 
        subsection (a) or (b) of section 52 shall be treated as a 
        single taxpayer, and the dollar amount contained in such 
        subsection shall be allocated among such persons under 
        regulations prescribed by the Secretary.
            ``(2) Reduction in basis.--Rules similar to the rules of 
        paragraphs (1) and (2) of section 50(c), and section 
        1016(a)(19), shall apply with respect to property for which a 
        credit is determined under this section.
            ``(3) Other deductions and credits.--No deduction or credit 
        shall be allowed under any other provision of this chapter with 
        respect to any expenditure for which a credit is determined 
        under this section.''.
    (b) Conforming Amendments.--
            (1) Section 38(b) of such Code is amended--
                    (A) by striking ``plus'' at the end of paragraph 
                (11),
                    (B) by striking the period at the end of paragraph 
                (12) and inserting ``, plus'', and
                    (C) by adding at the end the following new 
                paragraph:
            ``(13) the breastfeeding promotion and support credit 
        determined under section 45D(a).''
            (2) Subsection (d) of section 39 of such Code (relating to 
        carryback and carryforward of unused credits) is amended by 
        adding at the end the following new paragraph:
            ``(9) No carryback of section 45d credit before january 1, 
        1999.--No portion of the unused business credit for any taxable 
        year which is attributable to the credit determined under 
        section 45D may be carried back to a taxable year beginning 
        before January 1, 1999.''.
            (3) The table of sections for subpart D of part IV of 
        subchapter A of chapter 1 of such Code is amended by adding at 
        the end the following new item:

                              ``Sec. 45D. Credit for employer expenses 
                                        incurred to facilitate employed 
                                        mothers who breastfeed or 
                                        express milk for their 
                                        children.''
    (c) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 1998.

SEC. 5. BREAST PUMPS.

    (a) Performance Standards.--The Secretary of Health and Human 
Services shall take such action as may be appropriate to put into 
effect a performance standard for breast pumps irrespective of the 
class to which the device has been classified under section 513 of the 
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360c). In establishing 
such standard, the Secretary shall identify those pumps appropriate for 
use on a regular basis in a place of employment based on the efficiency 
and effectiveness of the pump and on sanitation factcors related to 
communal use. Action for a performance standard shall be taken within 
one year of the date of the enactment of this Act.
    (b) Compliance Policy Guide.--The Secretary of Health and Human 
Services, acting through the Commissioner of Food and Drugs, shall 
issue a compliance policy guide which will assure that women who want 
to breastfeed a child are given full and complete information 
respecting breast pumps.

SEC. 6. FAMILY AND MEDICAL LEAVE FOR NURSING MOTHERS' BREAKS.

    (a) Private and Public Sector Employees.--
            (1) Amendment.--Section 102(a) of the Family and Medical 
        Leave Act of 1993 (29 U.S.C. 2612(a)) is amended by adding at 
        the end the following:
            ``(3) Nursing mothers' breaks.--A lactating mother who is 
        entitled to leave under paragraph (1)(A) or (1)(B) shall, 
        during the first 12-month period for which the employee is 
        entitled to such leave under paragraph (2), be given up to one 
        hour in each 8 hour work day in such period to express milk for 
a child. The time may be taken in 2 one-half hour periods or in 3 20 
minute periods. For work shifts longer or shorter than 8 hours 
proportional adjustments shall be made in the time given an employee to 
express milk for a child. The time taken will not be charged against 
the employee's entitlement to leave under paragraph (1). Unless 
otherwise deemed to be compensable hours of work under applicable 
Federal, State, or local law, employers are not required to compensate 
employees for time under this paragraph. Such an employee shall give 
the employee's employer notice, in accordance with subsection (e)(1), 
that the employee will want the time provided by this paragraph.''.
            (2) Intermittent leave.--The first sentence of section 
        102(b) of the Family and Medical Leave Act of 1993 (29 U.S.C. 
        2612(b)) is amended by adding before the period the following: 
        ``or unless the leave is taken under subsection (a)(3)''.
            (3) Regulations.--Within 180 days of the date of the 
        enactment of this Act, the Secretary of Labor shall promulgate 
        regulations for the implementation of the amendment made by 
        paragraph (1).
    (b) Federal Employees.--
            (1) General rule.--Section 6382(a) of title 5, United 
        States Code is amended by adding at the end the following:
    ``(3) An employee who is a lactating mother who is entitled to 
leave under paragraph (1)(A) or (1)B) shall, during the first 12-month 
period for which the employee is entitled to such leave under paragraph 
(2), be given up to one hour in each 8 hour work day in such period to 
express milk for the child. The time may be taken in 2 one-half hour 
periods or in 3 20 minute periods. For work shifts longer or shorter 
than 8 hours proportional adjustments shall be made in the time given 
an employee to express milk for a child. The time taken will not be 
charged against the employee's entitlement to leave under paragraph 
(1). Unless otherwise deemed to be compensable hours of work under 
applicable Federal law, employees are not required to be compensated 
for time under this paragraph. Such an employee shall give the 
employee's employer notice, in accordance with subsection (e)(1), that 
the employee will want the time provided by this paragraph.''.
            (2) Intermittent leave.--The first sentence of section 
        6382(b)(1) of title 5, United States Code, is amended by adding 
        before the period the following: ``or unless the leave is taken 
        under subsection (a)(3)''.
    (c) Purpose of Amendments.--The purpose of the amendments made by 
this section is to establish a legal minimum for the amount of time 
that a woman is entitled to express milk at the workplace. The 
amendments are not intended to preclude an employer from voluntarily 
providing more time for the employee to express milk or to diminish any 
rights the woman would otherwise have pursuant to the employer's sick 
leave or vacation policy or under the Family and Medical Leave Act of 
1993.

SEC. 7. CAMPAIGN REGARDING BREASTFEEDING AND HEALTH OF INFANTS.

    The Secretary of Health and Human Services, acting through the 
Maternal and Child Health Bureau of the Health Resources and Services 
Administration and in cooperation with the Secretary of Agriculture and 
the heads of such other Federal agencies as the Secretary of Health and 
Human Services determines to be appropriate, shall undertake a campaign 
aimed at health professionals and the general public to promote the 
benefits of breastfeeding for infants, mothers, and families. 
Activities under the program shall include providing such education to 
public and private health professionals who provide health services 
under Federal programs (including health programs for Federal 
employees).

SEC. 8. INCREASED SUPPORT FOR BREASTFEEDING PROMOTION AND SUPPORT 
              ACTIVITIES UNDER THE WIC PROGRAM.

    Section 17(h)(3) of the Child Nutrition Act of 1966 (42 U.S.C. 
1786(h)(3)) is amended by adding at the end the following:
    ``(H) Notwithstanding any provision in this subsection that 
requires a State agency to fund breastfeeding promotion and support 
activities from amounts made available for nutrition services and 
administration, a State agency may use funds made available for food 
benefits under this section (including savings from infant formula cost 
containment) for such breastfeeding promotion and support 
activities.''.

Summary: New Mothers' Breastfeeding Promotion and Protection Act of 1998 - Amends the Civil Rights Act of 1964 to include breastfeeding or expression of milk from the breast to feed a child among those activities for which a woman may not be discriminated against in employment. Amends the Internal Revenue Code to allow a tax credit for 50 percent of employer expenses for providing an appropriate environment on business premises for employed mothers to breastfeed or express milk for their children. Directs the Secretary of Health and Human Services (HHS) to put into effect a performance standard for breast pumps irrespective of the class to which the device has been classified under the Federal Food, Drug, and Cosmetic Act, identifying those pumps appropriate for use on a regular basis in a place of employment based on the efficiency and effectiveness of the pump and on sanitation factors related to communal use. Requires the Secretary, acting through the Commissioner of Food and Drugs, to issue a compliance policy guide which will assure that women who want to breastfeed a child are given full and complete information about breast pumps. Amends the Family and Medical Leave Act of 1993 (FMLA), and Federal civil service law, to require family and medical leave for nursing mothers' breaks, if the lactating mothers are entitled to specified leave as private or public employees under such law. Directs the Secretary of Labor to promulgate regulations to implement such FMLA requirement. Directs the Secretary of HHS, acting through the Maternal and Child Health Bureau of the Health Resources and Services Administration and in cooperation with the Secretary of Agriculture and other appropriate Federal agency heads, to undertake a campaign aimed at health professionals and the general public to promote the benefits of breastfeeding for infants, mothers, and families, especially public and private health professionals providing health services under Federal programs . Amends the Child Nutrition Act of 1966 to allow State agencies to use funds made available for food benefits for breastfeeding promotion and support activities under the special supplemental nutrition program for women, infants, and children .