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May 31, 2012

By Susan Keating Anderson

Time magazine’s recent cover, depicting a mother nursing her almost 4-year-old son, brought the subject of breastfeeding into the spotlight as water cooler debate across the globe.

The age-old issue of nursing mothers in the workplace, however, has long presented legal challenges and debate for both employers and employees alike.

Much of this debate, and the ensuing confusion, stems from the fact that very few employment regulations directly address nursing mothers. The increased focus on the benefits of breastfeeding in general, however, has spurred a move toward clearly defining the legal rights and obligations of breastfeeding mothers and their employers, including what accommodations need to be made for nursing mothers so that they can express their breast milk privately when they are at work.

Provisions in federal law

At the federal level, the 2010 Patient Protection and Affordable Care Act (PPACA) contains a provision that requires employers covered by the Fair Labor Standards Act (FLSA) to provide both “reasonable breaks to mothers to express breast milk” and an appropriate, private area for them to do so. The reasonableness of the breaks is a fact specific question that will vary depending on the employer and employment context. As to the location for these breaks, Fact Sheet #73, issued by the U.S. Department of Labor, confirms that a restroom is not a permissible break location.

Instead, the DOL fact sheet notes that employers must provide nursing mothers with a “space temporarily created or converted into a space for expressing milk or made available when needed” and that the space must be sufficiently “…shielded from view and free from any intrusion from co-workers and the public.”

Additionally, as long as the employee has been completely relieved of her employment duties, employers are not required to compensate an employee for these breaks, regardless of the break’s duration. But, if the employee wishes to use a compensated break already available to her and other employees for the purpose of pumping, the employer must compensate her the same way it compensates other employees.

Despite its clearly spelled out protections, the PPACA provision has one glaring omission: Only employees who are not exempt from the FLSA’s overtime pay requirements, typically hourly employees, are legally entitled to breaks to pump. Employers should consider other factors, such as employee morale and retention, when considering extending the same opportunities to pump in the workplace to exempt employees.

The 50 employee hardship exemption

Also note that there is a hardship exemption from this provision for employers with fewer than 50 employees, if the employer can demonstrate that compliance would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

Caution is suggested when employers are determining that they are unable to comply with the PPACA’s requirements. A careful analysis as to whether the reasons they believe they cannot comply the requirements will meet the undue hardship standard is recommended before they make any final decision.

Additionally, bear in mind that employees must notify employers of their intent to take a break for the purpose of expressing milk and that there have been cases decided in favor of the employer’s right to terminate workers for taking such a pumping break without notification. The Ohio Supreme Court, for example, has previously upheld an employer’s right to terminate in such a case.

Before deciding to terminate a lactating employee for taking unscheduled breaks, employers need to review their break policy as a whole. Do they permit other employees to take unscheduled breaks? And, if so, for what reasons? A neutral and consistent disciplinary policy should be implemented and enforced company-wide. Employers also generally may require their breastfeeding employees to follow other rules applicable to all employees.

Proposed Breastfeeding Promotion Act

Employers need to be careful, however, and be aware of the laws surrounding lactating employees in their states because the Ohio Supreme Court implied in that case that, if the issue was placed before it, it could find that Ohio law prohibits discrimination against nursing mothers.

In fact, along that same line of thinking, the proposed Breastfeeding Promotion Act of 2011 (BPA), a proposed amendment of the Civil Rights Act of 1964, seeks to protect breastfeeding women from workplace discrimination. It also is designed to provide employees who are exempt from the Fair Labor Standards Act and who are not protected under the PPACA with the right to a have a break to pump breast milk in an appropriate location during working hours.

If passed, the BPA would broaden the category of employees entitled to federal protection for pumping in the workplace and would also broaden the protection afforded employees by specifically prohibiting discrimination, including discharge, based on pumping or otherwise expressing milk in the workplace.

Simply put, both of these federal measures clearly indicate that employers should have clearly defined policies and protocols in place for objectively and fairly dealing with breastfeeding employees. Always check with legal counsel before implementing or enforcing any policies that affect an employee who is breastfeeding or expressing milk during work hours or on work premises.

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