Since the passage of the 2010 Patient Protection and Affordable Care Act (“ACA”), (Wage and Hour Division) often referred to as ”Obamacare,” working moms enjoy enhanced workplace rights to pump or express breast milk, unrecognized by the law just a generation ago. This piece provides a general overview of these new developments; however, if you have any specific question as to the application of these regulations, please consult an employment attorney.
For many nursing mothers, returning to work during that first year of their new child’s life can be a stressful and uncertain time. The American Academy of Pediatrics (AAP) “recommends that babies be exclusively breastfed for about the first 6 months of life.” (See Breastfeeding Initiatives) For new parents, workplace leave protections, which are unpaid times off, are limited. For example, the Massachusetts Medical Leave Act (MMLA) provides eight weeks of unpaid leave relating to the birth or adoption of a minor child, while the federal Family Medical Leave Act (FMLA) is restricted to twelve weeks of unpaid leave for larger employers ( > 50 employees only). Consequently, practical considerations dictate that most mothers must return to work well before they have finished breast feeding their newborns.
Oddly, The United States Department of Labor (DOL) (Wage and Hour Division) enforces the “Break Time for Nursing Mothers” law because of its jurisdiction over the federal Fair Labor Standards Act (FLSA). The provision applies to nonexempt (generally hourly paid) employees covered by the FLSA. Many U.S. employers are now required to provide qualifying employees a “reasonable break time” as often as an employee has a need to “express breast milk for her nursing child” for one full year after the child’s birth. An employer is not required to pay for such “reasonable break time;” but if paid breaks are provided to other employees, then mothers who take breaks to pump breast milk may well also be entitled to compensation for that time.
In addition to providing covered employees reasonable time to pump breast milk, employers must also afford them “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” for purposes of pumping breast milk. These new workplace rules assure most working mothers the time, privacy, and protection needed to return to their professional lives while still tending to the recommended nutritional needs of their developing children.
Employers with fewer than 50 employees are potentially exempted from the federal breast pumping rules, but only if they can overcome the burden of proof to show that compliance with the law would impose an “undue hardship.” This burden is high. Employer applicants must show that providing these accommodations would cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Because a clean, private location may be established in most industries without significant cost, securing an undue hardship exemption would likely be quite challenging. Furthermore, due to the changing nature of most businesses, each application for such an accommodation would require an individualized assessment and particularized exemption application. Additionally, there are other exceptions to the coverage of this law. For example, employees who are generally exempted from section 7 of the Fair Labor Standards Act are arguably not covered by the law at all. This will no doubt be challenged in Court.
Violations of the ACA are to be reported to the Wage & Hour Division of the U.S. Department of Labor. If an employer discriminates against an employee under the ACA or retaliates against the employee for asserting her rights, filing a complaint under the ACA or cooperating with a resulting investigation, she may institute an administrative claim or civil lawsuit. The available statutory remedies are still being hotly debated but have been found to include those remedies available under the FLSA: lost wages, attorney’s fees and costs (See Salz v. Casey’s Marketing Co. N.D. Iowa, No. 11-cv-3055, 7/19/12).
In a non-ACA decision, The Massachusetts Supreme Judicial Court weighed in on a similar issue on the state level in the context of a physician-mother taking her licensing exam. In Currier v. National Board of Medical Examiners, 462 Mass. 1 (2012) the SJC held that pregnancy, along with lactating and breast feeding, are inextricably linked to the female sex (gender). As such, the Court found that discrimination protections afforded in the gender context are applicable to mothers that breastfeed or pump. Therefore, in addition to the new ACA protections, Massachusetts employers (and in some cases, responsible supervisors) who are found to discriminate against women in the workplace by improperly restricting their time to privately express milk in a sanitary environment face potential liability under Massachusetts’s Equal Rights Act, M.G.L. Chapter 93, section 102, and/or Massachusetts’s Anti Discrimination Statute, M.G.L. Chapter 151B, and can be held responsible for back pay, front pay, lost benefits, emotional distress, attorney fees and costs, and even in some cases punitive (punishment) damages.
Not only are there substantive restrictions to the applicability of the ACA and state laws, but strict and fairly short deadlines apply to file an administrative complaint or civil lawsuit. These statutes of limitations must be carefully adhered to in order to preserve or pursue a claim under governing state law or the ACA, so persons interested in prosecuting such claims should speak with an employment law attorney and act immediately.
The social trend in society that we protect our nursing mothers is now codified and has found its way into our legal framework. Time will tell how the Courts interpret these rules but it is safe to say that the rights and protections of new mothers to express milk in the workplace have greatly expanded.