Lactation Discrimination and Accommodation Becomes a New Hot Topic for Federal Agencies and Courts

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The recent pregnancy accommodation Guidance from the Equal Employment Opportunity Commission ("EEOC") makes it clear that discrimination against a female employee who is lactating or breastfeeding is illegal, in violation of Title VII. Click here for a copy of the complete Guidance.

At least one federal circuit, the Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi, has agreed with the EEOC by recognizing this as a covered cause of action under Title VII as well.

The Fair Labor Standards Act ("FLSA") also provides certain protections to employees who are breastfeeding. Those protections are as follows:

(1) An employer shall provide –

(A) a reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements 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.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

29 U.S.C. § 207(r).

Section 4207 of the Patient Protection and Affordable Care Act ("ACA") provides the same standards.

With regard to the actual lactation area, the Department of Labor ("DOL") has issued the following Guidance:

A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.

Click here for a copy of the complete Guidance.

With regard to lactation breaks, the DOL has explained, as noted in the statutory references above, that employers are not required to compensate for these breaks, but "[w]here an employer already provides paid breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are compensated for break time." This DOL Guidance further explains as follows:

Additional time used beyond the authorized paid break time could be uncompensated. For example, if an employer provides a 20-minute break and a nursing employee uses that time to express milk and takes a total of 25 minutes for this purpose, the five minutes in excess of the paid break time does not have to be compensated. The FLSA's general requirement that the employee must be completely relieved from duty applies, however, such that if a nursing employee is not completely relieved from duty during a break to express breast milk, the time must be compensated as work time.

Further, "[a]lthough the FLSA does not require employers to allow employees to extend their workday (i.e., begin work earlier or end work later) to make up for unpaid break time used for expressing milk, the DOL encourages employers to provide flexible scheduling for those employees who choose to make up any unpaid break time."

With regard to the meaning of "reasonable break time," the DOL emphasizes that nursing mothers have a wide variety of needs. The DOL estimates that nursing mothers typically will need breaks to express milk two to three times per day during an eight-hour shift. Further, the DOL notes that the act of expressing milk typically takes 15 to 20 minutes, but that many factors should be considered in determining whether the time needed for a nursing employee to express milk is "reasonable," including:

(i) The time it takes to walk to and from the lactation space and the wait, if any, to use the space;

(ii) Whether the employee has to retrieve her pump and other supplies from another location;

(iii) Whether the employee will need to unpack and set up her own pump or if a pump is provided for her;

(iv) The efficiency of the pump used to express milk (employees using different pumps may require more or less time);

(v) Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments;

(vi) The time it takes for the employee to store her milk either in a refrigerator or personal cooler (i.e., is it nearby or in another area, etc.).

Employers are encouraged to discuss these needs with employees to develop shared expectations and an understanding of what will constitute "a reasonable break time" and how to incorporate the breaks into the work period.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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