By Natalie Tupta, Staff Writer
One of the most important bipartisan political issues today is finding ways to support working parents by adopting policies that allow parents to both care for their children physically and financially. Women’s health and career needs are at the heart of this dialogue, because working mothers’ role in child bearing and rearing is physically, and often socially, different from working fathers’ role.
One way that working mothers’ experiences differ from working fathers’ is that breastfeeding mothers have unique needs for accommodation once they return to work after giving birth. As such, the way that laws support working mothers who breastfeed may be crucial to the decisions mothers make about how to best nourish and care for their children.
Protections Under the Fair Labor Standards Act
In 2010, the Affordable Care Act amended Fair Labor Standards Act (“FLSA”) to require that employers provide breastfeeding employees a reasonable amount of break time and space to express breast milk as frequently as necessary, for up to a year after the birth of the employee’s child.[1] Under the FLSA, employers are required to provide space for breastfeeding employees other than a bathroom and that is shielded from view and intrusion by coworkers.[2]
Breastfeeding employees are not entitled to compensation for breaks taken to express milk, unless the employee expresses milk during break time normally compensated by the employer.[3] Furthermore, the breastfeeding employee must be compensated for a milk expression break if she is not completely relieved of job duties during the break.[4]
These protections only apply to nonexempt (hourly) employees covered by the FLSA. The FLSA applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce.[5] For most entities, a test of not less than $500,000 in annual dollar volume of business applies.[6] The FLSA also generally covers domestic service workers such as housekeepers, cooks, or full-time babysitters.[7]
All these employers must comply with the FLSA break time requirement unless they have fewer than fifty employees and can demonstrate that compliance with the provision would impose an undue hardship.[8]
The FLSA does not cover employees in many jobs, such as employees of hospitals, schools, or government agencies. Domestic service workers who reside in their employers’ residences, casual babysitters, and farmworkers, are also not covered under the FLSA.[9] The clear result is that many working mothers are not entitled to the protections afforded under the FLSA.
Protections Under the Pregnancy Discrimination Act
The federal Pregnancy Discrimination Act (“PDA”) of Title VII provides limited protections to breastfeeding employees. The PDA prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions,” including the need to express breast milk.[10]
The Fifth Circuit in EEOC v. Houston Funding II, Ltd. cautioned that the PDA does not require employers to provide breastfeeding employees special accommodations for breastfeeding or expressing breast milk; the PDA simply says that employees may not experience discrimination based on their need to express breast milk.[11] Therefore, in order to bring a successful claim under the PDA, the plaintiff must allege that she belongs to a protected class, she was qualified for her job, she was the victim of adverse employment actions or conditions relating to her lactation breaks, and she was treated less favorably than similarly situated co-workers who did not belong to the protected class.[12]
Ways to Provide More Support to Breastfeeding Employees
The Pennsylvania legislature could enact legislation that would provide additional support to breastfeeding employees. Some states offer workplace protections to breastfeeding employees that exceed those guaranteed under the FLSA and PDA, but Pennsylvania is not one of them. One important step towards supporting mothers occurred in 2007, when Pennsylvania enacted its Freedom to Breastfeed Act, with the result that breastfeeding mothers in Pennsylvania may nurse their children in public, and such breastfeeding is not considered a nuisance, indecent exposure, sexual conduct, or obscenity.[13]
An area where breastfeeding employees need additional support is accommodations for preserving milk that has been expressed during work hours. There is no federal or Pennsylvania law that requires employers to provide storage for expressed breast milk. Yet, other states such as Indiana and Mississippi have enacted statutes which set forth an employer’s requirements related to breast milk storage in the workplace.[14]
These rules can be particularly impactful for women employed in workplaces that are not especially equipped to preserving breast milk, such as crop fields and construction sites. If the Legislature were to enact rules supporting women seeking breast milk storage at work, or if companies enacted policies that had this supportive effect, working mothers would be afforded the opportunity to be both good parents and good employees.
Sources
[1] U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA” (2013), available at https://www.dol.gov/whd/regs/compliance/whdfs73.pdf.
[2] 29 U.S.C. 207(r).
[3] U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA)” (2008), available at https://www.dol.gov/whd/regs/compliance/whdfs22.pdf.
[4] Id.
[5] U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #14: Coverage Under the Fair Labor Standards Act (FLSA)” (2009), available at https://www.dol.gov/whd/regs/compliance/whdfs14.pdf.
[6] Id.
[7] Id.
[8] U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA” (2013).
[9] U.S. Dept. of Labor, Wage and Hour Division, “Handy Reference Guide to the Fair Labor Standards Act” (2014), available at https://www.dol.gov/whd/regs/compliance/wh1282.pdf; US. Dept. of Labor, Wage and Hour Division, “Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages” (2008), available at https://www.dol.gov/whd/regs/compliance/whdfs39.pdf.
[10] 42 U.S.C. § 2000e(k); EEOC v. Houston Funding II, Ltd.,717 F.3d 425, 428 (5th Cir. 2013) (holding that plaintiff whose employment was terminated because she was lactating or expressing breast milk could bring a sex-discrimination claim under Title VII because “lactation is a related medical condition of pregnancy for purposes of the PDA”).
[11] Id. at 430 n. 6; see also Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 207 (5th Cir. 1998) (the PDA does not require special treatment based on pregnancy); Falk v. City of Glendale, No. 12-cv-00925-JKL, 2012 U.S. Dist. LEXIS 87278, 2012 WL 2390556, at *4 (D. Colo. 2012) (the PDA does not require employers to affirmatively provide accommodations); Vachon v. R.M. Davis, Inc., No. 03-234-P-H, 2004 U.S. Dist. LEXIS 6339, 2004 WL 1146630, at *10 (D. Me. 2004) (employer’s failure to provide sufficient accommodations for breastfeeding is not considered an adverse employment action).
[12] Frederick v. N.H. HHS, 2015 U.S. Dist. LEXIS 132652; EEOC v. Vamco Sheet Metals, Inc., 2014 U.S. Dist. LEXIS 77436, 2014 WL 2619812, at *6 (S.D.N.Y. 2014). See also Hicks v. City of Tuscaloosa at 75, citing Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1334 (2015) (“[U]nder the PDA, an employer is not required to treat breastfeeding or lactating employees better than it would treat non-lactating employers under similar circumstances, as long as it does not treat them worse.”).
[13] 35 Pa. Cons. Stat. § 636.1 et seq. (2007); see also Pennsylvania Breastfeeding Coalition, “Pennsylvania Breastfeeding Law,” available at http://www.pabreastfeeding.org/workplace/pennsylvania-breastfeeding-law/ (last visited Feb. 19, 2018).
[14] See Ind. Code § 5-10-6-2 and Ind. Code § 22-2-14-2 (2008) (state and political subdivisions shall, inter alia, “make reasonable efforts to provide for a refrigerator to keep breast milk that has been expressed”; employers with more than 25 employees must if possible . . . provide a refrigerator for storing breast milk that has been expressed); Miss. Code Ann. § 43-20-31 (2006) (licensed child care facilities must provide breastfeeding mothers a refrigerator to store expressed milk and train staff in the safe and proper storage and handling of human milk); Mont. Code Ann. § 39-2-215 et seq. (employers must provide facilities for storage of the expressed milk).
