Client Alert from the Labor and Employment Group - April 2010
Breastfeeding Moms Given Federal Protection
in the Workplace
by Nancy A. Noall and Michael Schmeltzer
Last August, we sent you a newsletter explaining how the Ohio Supreme Court had dodged the issue of whether breastfeeding moms are protected from discrimination under Ohio's sex/pregnancy discrimination law. See "Client Alert - Breastfeeding Moms Have to Follow the Rules at Work." In Allen v. Totes/Isotoner Corp, Slip Opinion No. 2009-Ohio-4231, the Ohio Supreme Court held that an employer did not discriminate against a new mother when it discharged her because she "failed to follow directions" by taking unauthorized breaks to pump breast milk. The court, therefore, found that there were legitimate reasons for the employee's termination and did not have to address the issue of whether one's status of being a lactating woman is protected by the State's employment discrimination laws.
We predicted in August that if the Ohio Supreme Court ever were required to face the discrimination issue head-on, it would find that the prohibitions against sex discrimination in the workplace included discrimination against lactating mothers. The federal government, however, has taken this issue out of the State's hands. One of the less well-known and certainly least-publicized provisions of the new Patient Protection and Affordable Care Act ("PPACA"), signed last month by President Obama, specifically requires that all employers who are subject to the Fair Labor Standards Act ("FLSA") provide an unpaid break for mothers to express breast milk for one year after the birth of a child. In addition to requiring an unpaid break, the amendment to the FLSA, entitled "Reasonable Break Time for Nursing Mothers," also requires the employer to provide a place for the employee to express her milk in a location that is shielded from view and "free from intrusion from co-workers and the public," other than a bathroom.
While most businesses in the United States will be required to provide unpaid breaks for breastfeeding mothers, the new amendment does provide a hardship exemption for employers with fewer than 50 employees, if the employer can show that compliance would "impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business." Since the law is so new, there are no regulations or case law construing what constitutes an undue hardship. An employer, however, should be extremely cautious in determining that it is unable to comply with the new provision of the FLSA, particularly the requirement that it provide unpaid breaks for the purpose of expressing breast milk. Small employers may have a stronger argument that complying with the requirement of providing a place "other than a bathroom" for the purpose of expressing milk is an undue hardship, if such a place does not already exist.
The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. The lawyers in Walter & Haverfield's Labor and Employment Law Group will be pleased to assist with any questions about this new law.
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