One of our employees has approached us looking for a reduction in working hours to facilitate breastfeeding breaks. We thought that our obligation was to facilitate short breaks for the employee as opposed to reducing her working hours. Furthermore, this employee now works from home since Covid and so we question what her entitlement is in those circumstances.

How do we handle it?

The entitlement to breastfeeding breaks is set out in an amendment to the Maternity Protection Act, 1994, (“the Act”), and further detailed in supporting Regulations (the Maternity Protection (Protection of Mothers Who Are Breastfeeding) Regulations 2004, (“the Regulations”).

The Act and the Regulations have been recently amended by the Work Life Balance Act 2023 - but only in respect of the extension of the time during which breastfeeding breaks must be facilitated (from 6 months to two years). Nothing else has changed in the Act and the Regulations and so we must look to them for the entitlements.

The Act states as follows;

(1) An employee who is breastfeeding shall be entitled, without loss of pay, at the option of her employer to either—

(a) time off from her work for the purpose of breastfeeding in the workplace in accordance with regulations made under this section by the Minister where facilities for breastfeeding are provided in the workplace by her employer, or

(b) a reduction of her working hours in accordance with regulations made under this section by the Minister for the purpose of breastfeeding otherwise than in the workplace.

We suspect that the intention behind (b) may have been that it would apply where facilities for breastfeeding are not provided in the workplace – but that is not in fact what it states. So, the impact of this section is that either an employee is breastfeeding in the workplace (with facilities provided for her to do so) and is entitled to time off or she is breastfeeding somewhere other than the workplace, in which case she is entitled to a reduction in her working hours.

We then turn to the Regulations to see what they say and whether they provide any clarification and they state as follows;

3. (1) An employee who is breastfeeding and to whom subsection (1)(a) of section 15B of the Principal Act applies shall be entitled, without loss of pay, to take 1 hour off from her work each working day as a breastfeeding break which may be taken—

(a) in the form of—

(i)  one break of 60 minutes

(ii)  two breaks of 30 minutes each,

(iii) three breaks of 20 minutes each, or

(b) in such other manner as to number and duration of breaks as may be agreed by her and her employer.

(2) An employee who is breastfeeding and to whom subsection (1)(b) of section 15B of the Principal Act applies shall be entitled, without loss of pay, to have her working hours reduced by 1 hour each working day and that reduction may comprise one period of 60 minutes, two periods of 30 minutes each, 3 periods of 20 minutes each or such other periods as may be agreed by her and her employer.

So, the question arises for each employee who makes a request for breastfeeding breaks as to whether (a) applies or (b) applies – (a) relates to when an employee is breastfeeding in the workplace and (b) applies to an employee is breastfeeding somewhere other than the workplace.

Are employees who are working from home in the workplace or somewhere other than the workplace?  If the employee is being facilitated by her employer in working from home since Covid, then the home has become her workplace, and all the usual health and safety obligations, for the employer and employee, apply to that arrangement. Therefore, for the purposes of the Act and the Regulations, we would say that the employee is in fact in the workplace.

If that is our position, then (a) applies and she is entitled to time off from her work for the purpose of breastfeeding in the workplace, which as per the Regulations, (a) in the form of—

(i)  one break of 60 minutes,

(ii)  two breaks of 30 minutes each,

(iii) three breaks of 20 minutes each, or

(iv)in such other manner as to number and duration of breaks as may be agreed by her and her employer

Therefore, as per (iv) above, agreement of the employer only comes into play when the parties are agreeing breaks which are outside of the prescribed breaks of 60, 30 and 20 minutes.  Therefore, for example, if the employee looked for a 60 minute breastfeeding break at 4pm each day, thereby effectively finishing an hour earlier each day, it is difficult to see how the employer could refuse, unless agreement could be reached between the parties on some other arrangement.

It is important however that the employer uses the correct language for what is being agreed – breaks (if breastfeeding in the workplace) or reduced working hours (if breastfeeding somewhere other than the workplace).

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