Quirky Question #230, Accommodating Nursing Mothers

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Question:

We are a large Minnesota employer and we have a non-exempt employee who is asking for breaks to express her breast milk multiple times every day, and each break takes a long time. We let her do so in her office, and she tapes a “not available” note across the window on her office door, but the door doesn’t lock. I know we don’t need to pay her while she’s on these breaks, but productivity in the office is suffering, as other employees are being forced to wait for her to complete her tasks. Can we put some limits on this?

Answer:

Probably not, and, in fact, you’re probably not doing enough. As a Minnesota employer, both federal and state laws come into play when it comes to accommodating nursing mothers. Under federal law, the Affordable Care Act (ACA) (see the combined full text of Public Laws 111-148 and 111-152 here) amends the federal statute that governs employee wages and hours (the Fair Labor Standards Act (FLSA), 29 U.S.C. 207) to require an employer to provide reasonable unpaid break time for an employee to express breast milk for her nursing child. Specifically, the federal ACA requires that:

- an employermust provide break time each time the nursing employee needs it (which can vary greatly between mother to mother)

- an employermust provide reasonable break time only until the infant reaches age one

- an employer must provide a place to express breast milk

- the place to express milk cannot be a bathroom, but beyond that it need only be shielded from view and free from intrusion

- only non-exempt employees need be provided nursing breaks; salaried employees are not covered

- small employers (less than 50 employees) need not comply if the law’s requirements impose an undue hardship

- state laws will apply if they offer more protection to nursing mothers

A recently amended law in Minnesota fills in some gaps and expands upon federal law. On May 11, 2014, Governor Mark Dayton signed into law a collection of bills, collectively known as the Women’s Economic Security Act (“the Act”). The Act includes provisions regarding employment discrimination, expanded leave rights, and others, and also clarifies accommodations required for nursing mothers.   As amended, the Minnesota law regarding accommodating nursing mothers now requires that:

- an employermust provide break time each day (but not necessarily each time the nursing employee needs it), but break time is not required if doing so would unduly disrupt the employer’s operations

- an employer must provide reasonable break time as long as the nursing mother needs it, not tied to the infant’s age (note that other states’ requirements also exceed the ACA, for example, Colorado requires this accomodation for two years, New York for three years)

- an employer is not required to provide a place to express breast milk, but must only make reasonable efforts to do so

- the place to express milk cannot be a bathroom, must be shielded from view, free from intrusion, and include access to an electrical outlet (presumably for an electric breast pump)

- all employees – salaried and non-exempt – are covered by the Minnesota law

- all employers are covered, and small employees cannot claim undue hardship (though, as described above, Minnesota employers can claim undue disruption to operations)

- an employer may not retaliate against an employee for requesting nursing accommodation

These overlapping, sometimes conflicting and sometimes congruent requirements under federal and state laws can make compliance difficult.   For example, applying both the federal and state laws, for a Minnesota employer with 50 or more employees, and with respect to a non-exempt nursing mother employee, the requirements for that employer would be:

- the employer must provide break time each time and each day the nursing employee needs it

- even if providing break time is unduly disruptive to the employer’s operations (a state law protection for Minnesota employers), the break time must still be provided under federal law (because only state laws that are more protective of employees are safe from preemption by the ACA)

- an employermust provide reasonable break time as long as the nursing mother needs it

- an employer must provide a place to express breast milk, which cannot be a bathroom, must be shielded from view, free from intrusion, and include access to an electrical outlet

But the requirements may be different for an employer with less than 50 employees and/or with respect to a salaried employee.

Given this legal landscape, the best practice for Minnesota employers that seek to establish a uniform nursing mother policy may be to comply with the most protective provisions of both federal and state law, and to do so regardless how many workers are employed and regardless whether the worker is exempt or non-exempt. Thus, a Minnesota employer may consider providing to all exempt and non-exempt female employees a break each time and each day the nursing employee needs it, as long as the nursing mother needs the break (both in terms of a single break’s time to express milk and in terms of how long in weeks and months), in a place that is not a bathroom, shielded from view, free from intrusion, and with access to an electrical outlet, even if doing so is an undue hardship and even if doing so creates undue burdens on the employer’s operations. Instituting such a policy would provide the greatest protection against inadvertently violating either the federal or state law.

Providing these sorts of accommodations for nursing mothers are not only legally required, but, according to the U.S. Department of Health and Human Services, they’re also good business. The Department’s brochure cites studies suggesting that the return on investment in supporting breastfeeding actually saves employers money. Several reasons are cited:

1. Breastfeeding employees miss work less often, because breastfed infants are healthier and better protected against common childhood illnesses, so parents are less likely to miss work to care for a sick baby. The Department claims that one-day absences to care for sick children occur more than twice as often for mothers of formula feeding infants.

2. Breastfeeding lowers employers’ healthcare costs, because breastfed infants require medical care less frequently than formula fed infants and their mothers are at lower risk for several women’s diseases.

3. Women with children are the fastest growing segment of the workforce, so providing lactation support can prevent turnover and attract and protect employers’ investments through better retention.

Applied to your situation, under the ACA you do need to provide your employee with as much time as she needs to express milk, as many times a day as she needs to do it for as many weeks and months as she requests. In addition, asking your employee to tape a note over the window of her unlocked office door probably doesn’t cut it. While it’s not a bathroom and has electrical outlets, it’s not particularly free from intrusion. If you are not able to provide a separate room for her, then you may want to install a secure window covering and a lock for the door. These practices will not only minimize your legal risk, but might convince this working mother to remain at your workplace and others to join you as well.

 

Topics:  Affordable Care Act, Conflicts of Laws, Employer Liability Issues, Employment Policies, FLSA, Non-Exempt Employees, Reasonable Accommodation

Published In: Civil Rights Updates, Labor & Employment Updates

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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