By Angela Walker
The health benefits of breastfeeding are widely recognized.
Nevertheless, there are many practical hurdles to overcome — especially for working mothers.
The American Academy of Pediatrics currently recommends that breastfeeding continue for at least 12 months, and thereafter for as long as mother and baby desire.
Also, the World Health Organization recommends continued breastfeeding up to two years of age or beyond.
Recent legal developments are making it easier for women to adhere to these guidelines.
Employers Required to Provide Lactation Breaks Due to Recent Amendments to FLSA
On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA).
As part of the PPACA, the Fair Labor Standards Act (FLSA) (29 USC § 207) was amended to require employers to provide reasonable break time and private spaces for nursing mothers to express breast milk during the workday for up to one year after a child’s birth.
Under this new FLSA provision, employers must provide employees with enough time to express breast milk each time they need to do so—whether or not the timing is convenient from the employer’s perspective.
There are no specific limitations on the number, frequency, or duration of the breaks.
Nevertheless, employers are not required to compensate employees for time spent expressing breast milk.
Also, the Department of Labor has issued guidelines stating that only employees who are not exempt from FLSA’s overtime pay requirements are entitled to lactation breaks under FLSA.
In addition to break time for covered employees, employers must also provide a private place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and customers for women to express breast milk.
According to the Department of Labor’s guidelines, if the space is not exclusively dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.
The law applies to employers of all sizes. However, employers with less than 50 employees are not required to provide lactation breaks if they can show that doing so would pose an “undue hardship” by causing “significant difficulty or expense” when considered in relation to the size, financial resources, nature, and structure of the business.
Employers with over 50 employees have no such defense.
It is too soon to tell how this provision will be enforced by the courts.
Because these cases do not involve lost wages, it will be difficult to measure damages for those women who are denied lactation breaks.
Even so, employees who are denied reasonable break time or private spaces for pumping can go to court to obtain injunctive relief, and they would be protected from retaliation for enforcing their rights under FLSA.
Also, prevailing plaintiffs under FLSA have the right to recover attorney’s fees.
City of Ann Arbor Prohibits Discrimination Against Nursing Mothers
In early 2006, the Ann Arbor City Council passed a revision to the Ann Arbor City Code that gives nursing mothers the right to breastfeed in public in the City of Ann Arbor.
This law was passed in response to press coverage over an incident in December, 2005, where an Ann Arbor woman, Kelly Fuks, was told to stop breastfeeding her 6-month-old daughter at the local YMCA.
The City Code now provides that: “No person shall prohibit a breastfeeding mother from or segregate a breastfeeding mother within any public accommodation where she and the child would otherwise be authorized to be.”
Persons who are found to have violated this provision can be fined up to $500 per day.
Also, any woman who is denied the right to breastfeed in a place of public accommodation has the right to bring a civil action against the person (or persons) who violated her rights.
The City Code explicitly provides for the recovery of attorney’s fees, in addition to damages and injunctive relief.
Proposed Legislation Would Provide Similar Protection under ELCRA
Under Michigan law, municipalities are prohibited from criminalizing breastfeeding as a form of public nudity.
In spite of this, there is no state law that prohibits discrimination against nursing mothers. The state legislature is considering a bill that could change this.
On October 14, 2009, State Representative Rebekah Warren introduced House Bill 5515 which would amend the Elliott-Larsen Civil Rights Act to provide protection for nursing mothers.
The proposed law would make it illegal to ask a woman to stop breastfeeding her infant in a place of public accommodation.
In addition, it would make it illegal to deny equal enjoyment of goods and services to a woman because she was breastfeeding a child.
The bill passed the House Judiciary Committee on December 2, 2009, but it has not yet come up for a vote in the House.
Angela Walker is a principal at Nacht, Roumel, Salvatore, Blanchard and Walker. In addition to litigating employment discrimination cases, she devotes a significant portion of her practice to counseling employees and job seekers about disability accommodations, medical leave issues, and discrimination issues, as they arise. She also drafts employee handbooks and provides policy advice to small and mid-size businesses. Angela can be reached at awalker@nachtlaw.com.
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