Virginia: Lactation Break and Space Requirements

Virginia adds a lactation-accommodation right for employers with five or more employees

Virginia treats lactation as a related medical condition under Va. Code
§ 2.2-3909. For an employer with at least five employees for each working day in
20 or more calendar weeks in the current or preceding year, reasonable
accommodation expressly includes breaks to express breast milk and access to a
private location other than a bathroom. The duty applies to a known limitation
unless the employer proves undue hardship.

The statute defines lactation to include either feeding a child directly from
the breast or expressing milk. Its separate Va. Code § 2.2-3905 discrimination
coverage can reach an employer of one or more domestic workers, but that wording does not
change § 2.2-3909's express five-employee threshold for the accommodation duty.
An employee outside the state accommodation provision may still receive the
federal protection when the FLSA applies.

Federal § 218d independently requires reasonable time each time needed for one
year after birth and a non-bathroom place shielded from view and free from
intrusion. Virginia can be more protective because its accommodation provision
has no fixed post-birth cutoff. Federal law preserves greater state protection.

Frequency, duration, and pay turn on separate rules

Virginia does not set a fixed number of pumping sessions, a minutes-per-break
formula, or an end date after birth. Instead, the employer and employee address
the known lactation limitation through the reasonable-accommodation and
interactive-process framework. An employer claiming undue hardship must address
its operations and workforce, the facility's size, and the accommodation's
nature and cost. A similar accommodation for another employee class creates a
rebuttable presumption that the lactation accommodation is not an undue hardship.

The Virginia provision does not say that pumping time is paid or unpaid, and it
does not prescribe concurrency with ordinary rest or meal periods. Federal
§ 218d(b) says additional time need not be compensated unless another federal,
state, or local rule requires pay. The full break is hours worked, however, when
the employee is not completely relieved from duty.

The room must be private and cannot be a bathroom

State law expressly includes access to a private location other than a bathroom
for milk expression. It does not separately prescribe proximity to the work
area, temporary-room rules, shared-room priority, locks, signs, or a method for
shielding the user. The federal floor independently requires the place to be
shielded from view and free from intrusion by coworkers and the public.

Virginia also lists acquisition or modification of equipment and access to or
modification of employee seating as possible reasonable accommodations. That is
not a fixed room checklist. The state text does not mandate a particular chair,
pump surface, outlet, sink, running water, refrigerator, cooler, cleaning
protocol, or access schedule. Federal law still requires a functional space
available for its protected use.

Request, interactive process, and notice duties are distinct

When an employee requests an accommodation, the employer must engage in a
timely, good-faith interactive process to decide whether the request is
reasonable. If it is not, the employer must discuss alternatives that may be
provided. The statute does not prescribe a written request, special words,
medical form, fixed response deadline, or written-denial format.

Every covered employer must post information about these accommodation rights
conspicuously and include it in any employee handbook. The information must
also be given directly to each new employee when employment begins. Virginia
DOLI's required-posters page lists the official Reasonable Accommodations for
Pregnancy poster.

The statute also requires direct delivery within 10 days after an employee tells
the employer that she is pregnant. That trigger is written specifically for
pregnancy notice. It should not be restated as a separate 10-day deadline after
a lactation or pumping request.

Adverse action and forced leave are prohibited

An employer may not take adverse action against an employee who requests or uses
a reasonable accommodation. The statutory definition includes failing to return
the employee, when the need ends, to the previous or an equivalent position with
equivalent pay, seniority, and benefits. The employer also may not deny an
otherwise qualified applicant or employee an employment or promotion
opportunity because accommodation will be needed, or require leave when another
reasonable accommodation can be provided.

An employee or applicant denied a right under subsection B may sue in a Virginia
general district or circuit court with jurisdiction over the employer. The
ordinary deadline is two years from the unlawful denial. If a complaint was
timely filed with the state civil-rights office or a local human-rights agency,
the court action may instead be brought within 90 days after the agency's final
disposition. A prevailing plaintiff may receive compensatory damages, back pay,
equitable relief, reasonable attorney fees and costs, and permanent or temporary
injunctive relief, including a temporary restraining order or appropriate
affirmative action.

What trips people up

The five-employee threshold belongs to the accommodation section. Section
2.2-3905 separately includes employers of domestic workers in its discrimination
definition. That does not rewrite § 2.2-3909's express definition of an employer
for lactation accommodation.

Equipment and seating are possible accommodations, not a complete room
checklist. Virginia expressly names equipment acquisition or modification and
seating access or modification. It does not say every pumping room must contain
a fixed list of furniture, power, water, or cooling items.

The 10-day direct-notice trigger is pregnancy-specific. Posting, handbook,
and new-hire delivery cover the broader pregnancy, childbirth, and related-
condition rights. The separate 10-day clause follows notice that the employee is
pregnant, not every later lactation request.

Common questions

Does Virginia's lactation accommodation end one year after birth?

No fixed state cutoff appears in § 2.2-3909. The federal floor lasts one year,
but Virginia's reasonable-accommodation right can continue while a covered
employee has a known lactation-related limitation and the accommodation does not
impose undue hardship.

Must every Virginia pumping break be paid?

The Virginia lactation-accommodation text does not impose a specific pay rule.
Federal § 218d(b) permits unpaid additional time unless another law requires
compensation, but time is hours worked if the employee is not completely
relieved from duty.

Must the employer put lactation rights in its handbook?

If the covered employer has an employee handbook, yes. Section 2.2-3909(D)
requires information about pregnancy, childbirth, and related-medical-condition
accommodation rights both in any handbook and in a conspicuous posting. It also
requires direct delivery to new employees.

Statutes and sources

• Va. Code § 2.2-3909 — coverage, lactation accommodation, hardship,
  interactive process, notice, job protection, action deadlines, and relief.

  Reasonable accommodation includes more frequent or longer bathroom breaks,
  breaks to express breast milk, access to a private location other than a
  bathroom for the expression of breast milk, acquisition or modification of
  equipment or access to or modification of employee seating.

Official source: https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3909/ (accessed 2026-07-21)
- Va. Code § 2.2-3905 — current statutory lactation definition and separate
employment-discrimination rule.

Lactation means a condition that may result in the feeding of a child
directly from the breast or the expressing of milk from the breast.

Official source: https://law.lis.virginia.gov/vacode/title2.2/chapter39/section2.2-3905/ (accessed 2026-07-21)
- Virginia DOLI Reasonable Accommodations for Pregnancy poster — official
agency summary listed on DOLI's current required-posters page.

Employers with five or more employees for a 20-week period in the current or
preceding year must provide reasonable accommodations for pregnancy,
childbirth or related medical conditions, including lactation, unless the
accommodation would impose an undue hardship.

Official source: https://doli.virginia.gov/wp-content/uploads/2025/07/OUTREACH_INFO-SHEET_PREGNANCY-DISCN-PROVISIONS_2020-07-17_FINAL.pdf (accessed 2026-07-21)
- 29 U.S.C. § 218d(a), (b), (h) — federal time, space, compensation, and
greater-state-protection rules.

An employer shall provide—(1) a reasonable break time for an employee to
express breast milk for such employee's nursing child for 1 year after the
child's birth each time such employee has need to express the milk; and (2)
a place, other than a bathroom, that is shielded from view and free from
intrusion from coworkers and the public.

Official source: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section218d&num=0&edition=prelim (accessed 2026-07-21)