SB 219-FN - AS AMENDED BY THE SENATE
SENATE BILL 219-FN
This bill requires employers to provide reasonable accommodations to women who are breastfeeding. The bill also exempts a nursing mother from jury duty.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT relative to breastfeeding.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Breastfeeding; Employer Responsibilities. Amend RSA 275 by inserting after section 75 the following new subdivision:
Breastfeeding; Employer Responsibilities
275:76 Definitions. In this subdivision:
I. “Department” means the department of labor.
II. “Express milk” means the act of extracting human milk which can be accomplished by hand or pump.
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.
275:77 Time and Space to Express Milk.
I. An employer shall provide:
(a) A reasonable break time for an employee to express breast milk for her nursing child each time such employee has need to express the milk; and
(b) A sanitary indoor place, other than a bathroom or toilet stall, 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.
II. An employer shall not be required to compensate an employee receiving reasonable break time under paragraph I for any work time spent for such purpose, providing such break shall be documented as a break for the purpose of expressing milk.
III. Where employers already provide compensated breaks, an employee who uses that break time to express milk shall be compensated in the same way that other employees are compensated for break time. In addition, the employee shall be completely relieved from duty or else the time shall be compensated as work time.
IV. An employer that employs less than 50 employees shall not be subject to the requirements of this chapter, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
275:78 Retaliation. An employer shall not discharge or in any other manner discriminate against any employee because he or she makes a charge, files any complaint, or institutes or causes to be instituted any investigation, proceeding, hearing, or action under or related to this chapter, including an investigation conducted by the employer, or has testified or is planning to testify or has assisted or participated in any manner in any such investigation, proceeding, hearing, or action.
275:79 Penalty. Any employer violating this chapter shall be subject to a civil penalty, to be imposed by the labor commissioner in accordance with the procedures established in RSA 273:11-a. An employer aggrieved by the commissioner’s assessment of such penalty may appeal in accordance with RSA 273:11-c.
275:80 Advisory Council on Breastfeeding.
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 Business and Industry Association, appointed by the association.
(g) The president of the New Hampshire Breastfeeding Rights Coalition, or designee.
(h) The chair of the New Hampshire Breastfeeding Task Force, or designee.
(i) A hospital administrator from a certified baby-friendly hospital, appointed by the governor.
(j) A transportation representative, appointed by the governor.
(k) A currently breastfeeding mother, appointed by the governor.
(l) An attorney with experience in human rights issues, appointed by the New Hampshire commission on human rights.
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 interim report commencing on November 1, 2015 and a final report on December 1, 2016 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.
2 New Paragraph; Notification, Posting, and Records. Amend RSA 275:49 by inserting after paragraph VII the following new paragraph:
VIII. Keep posted in a place accessible by his or her employees such notices as prescribed by the commissioner on the protections under RSA 275:76 – 275:80. The commissioner shall adopt rules, under RSA 541-A, relative to the form, content, and placement of such notices.
3 Nursing Mothers; Exemption from Jury Duty. Amend RSA 500-A:11 to read as follows:
500-A:11 Excuse From Jury Service. A person who is not disqualified for jury service may be excused from jury service by the court only upon a showing of undue hardship, extreme inconvenience, public necessity, nursing mothers, or for any other cause that the court deems appropriate. The person may be excused for the time deemed necessary by the court and shall report again for jury service, as directed by the court.
4 Repeal. RSA 275:80, relative to an advisory council on breastfeeding, is repealed.
5 Effective Date.
I. Section 4 of this act shall take effect December 1, 2016.
II. Effective Date. The remainder of this act shall take effect 60 days after its passage.
SB 219-FN - FISCAL NOTE
AN ACT relative to breastfeeding.
The Judicial Branch, Department of Justice, and Department of Labor state this bill, as introduced, may increase state, county and local expenditures, and state restricted revenue by an indeterminable amount in FY 2015 and each year thereafter. There will be no impact on county and local revenue.
The Judicial Branch states this bill requires employers to provide reasonable accommodations to women who are breastfeeding. In addition, the bill provides for an automatic exemption from jury duty at the request of breastfeeding women. The bill may have a fiscal impact on the Branch in the following two ways: (1) proposed RSA 132:10-d,II and RSA 132:10-e, IV provide for an action by the attorney general for equitable relief to restrain or prevent a violation; and (2) RSA 132:10-e, IV provides that a violation of RSA 132-10-e would also constitute an unlawful discriminatory practice under RSA 354-A:7. Both of these types of actions would be classified as a complex equity case in the superior court. The Branch has no information on how many actions would be filed but does have information on the cost to process a complex equity case in the superior court. It should be noted average case cost estimates for FY 2016 and FY 2017 are based on data that is more than nine years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types. The cost to process a complex equity case in FY 2016 is $699 and in FY 2017 is $712. The possibility for a case to be appealed may also increase costs. Additionally, any appeals that may come from decisions of the Human Rights Commission could increase costs.
The Department of Justice states this bill authorizes the attorney general to bring civil action to restrain or prevent a violation. The bill would also require employers to provide reasonable accommodations to women who are breastfeeding. The Department would be authorized to bring civil action to accommodate this provision. The Department assumes that because this issue is substantial enough to generate legislation there would be a sufficient number of complaints. The Department does not have the personnel necessary to complete the necessary investigations and conduct the civil litigation that may be associated with this bill. The Department assumes they would need to hire a paralegal I and Assistant Attorney General to manage the workload anticipated by this bill. The Department assumes the additional personnel would be hired July 1, 2015. The Department estimates the paralegal I salary and benefits to be $60,000 in FY 2016, $60,000 in FY 2017, $63,000 in FY 2018 and $66,000 in FY 2019. The assistant attorney general salary and benefits is estimated to be $102,000 in FY 2016, $104,000 in FY 2017, $105,000 in FY 2018 and $106,000 in FY 2019.
The Department of Labor states it already has inspections in place so there would be no new expenses associated with this. The Department is unsure if the administration and promoting of the breastfeeding awareness fund will require additional personnel in order to determine if it will impact the Department’s expenditures. The Department has no information to determine how much revenue might be generated by civil penalties resulting from violations of RSA 132:10-e to determine the increase in state restricted revenue to the fund. The Department does not have information on whether every employer has a lactation room available or any costs associated with establishing a lactation room. For these reasons, the Department states the bill’s fiscal impact is indeterminable.
The New Hampshire Commission for Human Rights states the bill is unlikely to have a fiscal impact. The Commission states the bill is unlikely to add significant workload to its existing cases. The Commission states for the period of federal fiscal year 2012 to present there have been only two employment based charges taken related to breastfeeding or pumping breast milk in the workplace.