“First comes love, then comes marriage [or not – no judgment], then comes the baby in the baby carriage” and then – for nursing working mothers – comes expressing milk at the workplace. Nursing employees are currently afforded workplace protections under several major federal laws; plus, many state and local governments have expanded these federal protections, extending additional rights to nursing workers.
Federal Protections for Breastfeeding Employees
Under the pregnancy discrimination provisions of Title VII, it is unlawful for employers to discriminate not only on the basis of pregnancy but also on its related medical conditions. Lactation is such a recognized pregnancy-related medical condition.
The EEOC’s recently updated enforcement guidance on pregnancy discrimination offers the following examples of what not to do:
• “a manager’s statement that an employee was demoted because of her breastfeeding schedule would raise an inference that the demotion was unlawfully based on the pregnancy-related medical condition of lactation;”
• “if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances;” and
• “it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.”
Title VII, in short, requires that an employee must be granted the same latitude to address her lactation-related needs as would be provided to her co-workers to address similarly limiting medical conditions (e.g., frequent bathroom breaks for senior executives with enlarged prostates). And less favorable treatment of a nursing employee could in certain circumstances give rise to an inference of discrimination.
Beyond Title VII, there are amendments in the Fair Labor Standards Act (courtesy of the Affordable Care Act) that explicitly address lactation at work. First, employers must provide reasonable break time for non-exempt employees as frequently as needed to express breast milk for one year following childbirth, although these breaks are not required to be paid. Second, employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion, which can be used to express breast milk. Employers with fewer than 50 employees are not subject to these requirements if they would create an undue hardship.
The Family and Medical Leave Act may occasionally come into play because there are medical disorders that sometimes occur during lactation. For doubting Thomases, those are described in more detail than any of us need in the Journal of Clinical Gynecology and Obstetrics. Here, the complications occur in the counting: new mothers have often exhausted FMLA leave in childbirth and will be vulnerable unless their employer’s year count under this statute allows a fresh shot clock on leave.
But, all of these federal laws merely provide a floor and do not preempt state or local laws which provide greater protections to employees.
State and Local Laws Pertaining to Breastfeeding Employees
Over twenty states, as well as the District of Columbia and Puerto Rico, have laws specifically related to breastfeeding in the workplace. For example, New York, Maine and Vermont each require that nursing mothers be provided reasonable unpaid breaks (or be allowed to use paid break or meal time) to express milk for up to three years following child birth – rather than the one year provided under federal law (hats off to the women who fully avail themselves of the protections of the three year scope of these laws).
Additionally, many local governments have promulgated similar workplace protections, including Philadelphia and New York City. At the end of 2015, the New York City Human Rights Law was amended to allow employees to sue on the basis of their “actual or perceived” status as a “caregiver” – nothing screams caregiver like the sound of a lactation pump in the background of a conference call (this law goes into effect in May).
Best Practices for Employers
Several employers have made headlines recently by going above and beyond the call of duty to provide substantial accommodations to breastfeeding mothers, such as company-sponsored breast milk mailing programs and providing hospital grade breast pumps in state of the art lactation centers. This is certainly commendable but is by no means required. All employers, however, should consider the following best practices:
• Provide information regarding available accommodations and programs for nursing mothers which detail how the employee may request an accommodation and provide details on the available lactation space(s). This information can be incorporated into company policies and/or distributed to employees when they go out on or return from maternity leave.
• Designate a private area that can be used when requested to express milk. Ideally, this space should be equipped with a table, chair, electrical outlet and be in close proximity to a refrigerator for storing expressed milk, as well as a sink for cleaning the breast pump components. To the extent that this space is not lockable from the inside, there should be clear signage marking that it is a private area and not to enter.
• Incorporate information about the laws pertaining to breastfeeding employees in established company training programs for managers and supervisors, addressing, among other things, the break time and nondiscrimination requirements.
At the end of the day, providing support to nursing employees can be a win-win for employers and employees alike. Implementing policies and procedures can go a long way towards building goodwill, employee loyalty and preventing lactation litigation. Equally important, the preeminent legal scholar Elle Woods from Legally Blonde said it perfectly (even though she didn’t say it just this way), “[breastfeeding] gives you endorphins. Endorphins make you happy. Happy people just don’t [sue their employers], they just don’t.” You just know Elle would say that today.