To support breastfeeding by new mothers and encourage employers to support workplace lactation programs, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1: SHORT TITLE

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

SECTION 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.

SECTION 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.'.

SECTION 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 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.

SECTION 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.

SECTION 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.

SECTION 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).

SECTION 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.'.

Note: March 24, 1998