Skip to content

Menu

LexBlog, Inc. logo
NetworkSub-MenuBrowse by SubjectBrowse by PublisherBrowse by ChannelAbout the NetworkJoin the NetworkProductsSub-MenuProducts OverviewBlog ProBlog PlusBlog PremierMicrositeSyndication PortalsAbout UsContactSubscribeSupport
Book a Demo
Search
Close

Can an Employee Take Leave from Work for Lactation Breaks When the Baby Won’t Take a Bottle?

By Jeff Nowak on July 23, 2024
Email this postTweet this postLike this postShare this post on LinkedIn

The wheels are turning, aren’t they?

This question is another arising out of a webinar I recently conducted with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas (Job Accommodation Network) regarding the Pregnant Workers Fairness Act (PWFA).

A few weeks back, I addressed whether FMLA medical certification could be requested from an employee who seeks leave due to pregnancy limitations.

Now, let’s talk breaks for lactation. And bottles.

In our webinar, the following question was asked:

We have an employee whose baby will not take a bottle. Does the PWFA require accommodations that will enable the mother to leave work to feed her child (e.g., telework close to daycare, schedule modification, breaks, etc.)?

Thousands of you are screaming “PUMP Act! PUMP Act!”

Your chants are not misplaced. But what does the PUMP Act actually tell us?

Last year, the PUMP Act expanded workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk.  The PUMP Act expands upon a 2010 amendment to the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  This amended law expands this right to cover all employees covered by the FLSA, both exempt and non-exempt.  

But the PUMP Act doesn’t really neatly cover instances in which the baby will not take a bottle.

Does the PWFA fit here? Anywhere?

Here, too, it’s tough to wedge this issue under the umbrella of the PWFA. After all, the PWFA covers the “known limitations” of an employee, not the employee’s child who won’t take a bottle. Denying the PWFA request in this instance is technically correct.

But let’s be careful about our response to this kind of scenario.

First, there is an optics issue in refusing to work with your employee on the need for a flexible work arrangement to address the bottle-latching issue. Be sure to assess the risk before you say, “No,” and remember, we are in the human relations business. Before you say, “No,” let’s find an alternative.

Second, don’t forget that the final rule provides that a lactation accommodation can include permitting the employee to nurse during work hours where the child “is in close proximity” to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.”

Of course, this addresses breastfeeding, not bottle feeding. But as we see above, it doesn’t take much to turn a lactation request into a PWFA-protected time away from work, particularly where the child is in “close proximity” to your employee. As such, it’s critical for employers to carefully assess these requests. Deny them at your risk!

Photo of Jeff Nowak Jeff Nowak

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all…

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all things FMLA!

Read more about Jeff NowakEmailJeff's Twitter Profile
Show more Show less
  • Posted in:
    Employment & Labor, Featured Posts
  • Blog:
    FMLA Insights
  • Organization:
    Jeff Nowak
  • Article: View Original Source

LexBlog, Inc. logo
Facebook LinkedIn Twitter RSS
Real Lawyers
99 Park Row
  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service
  • Products
  • Blog Pro
  • Blog Plus
  • Blog Premier
  • Microsite
  • Syndication Portals
  • LexBlog Community
  • Resource Center
  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center
  • Blogging 101

New to the Network

  • Tennessee Insurance Litigation Blog
  • Claims & Sustains
  • New Jersey Restraining Order Lawyers
  • New Jersey Gun Lawyers
  • Blog of Reason
Copyright © 2025, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo