By: Clark, Campbell, Lancaster & Munson, P.A.
Q: My employee returned from maternity leave and must express milk regularly. What are my obligations when she requests a break and private space?
A: As an initial matter, the Florida Civil Rights Act considers pregnancy discrimination as sex discrimination. You cannot treat employees adversely because of pregnancy or the fact that they have children. A state public health statute recognizes breastfeeding as an “important and basic act of nature which must be encouraged”, and therefore mothers can breastfeed wherever they are otherwise permitted to be, regardless of whether breasts are covered.
Last month, the United States Equal Employment Opportunity Commission (EEOC) issued guidelines stating, among other things, that lactation is a pregnancy-related medical condition and that breastfeeding employees must have the same freedom to address lactation needs as coworkers would have to address “limiting medical conditions”. Accommodations need to be made. But to what extent?
The Patient Protection and Affordable Care Act (ACA) included an amendment requiring employers to provide both reasonable break time and a “shielded” location to express milk during the child’s first year. The employer does not need dedicated space, but the employer must make a suitable, private space other than a bathroom available upon request. The extra break time need not be compensated, provided that the employee is completely relieved of duty.
The protections of the amendment extend only to employers covered by the federal Fair Labor Standards Act (FLSA)—and whether your business meets that requirement could be the subject of a much longer article—but employers with fewer than fifty employees may be able to avoid the break time requirement if they can demonstrate that compliance would impose an undue hardship when looking at the difficulty or expense of compliance in comparison to the size, financial resources, nature, or structure of the business.
Earlier this year, the American Civil Liberties Union brought its first case under the ACA’s breastfeeding provision: a mother was forced to choose between lactation in a bathroom or a dirty locker room alongside dead bugs. It remains to be seen how courts will respond to increasing breastfeeding discrimination litigation, but it appears enforcement will primarily be by the EEOC as individual employees have difficulty bringing lawsuits for damages under the FLSA absent lost wages.
The August 28th edition of “The Law” will address responding to document subpoenas.
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