Lactation Law 101

ll101

It seems like yesterday that I was dealing with it: still in a postpartum haze, picking up my briefcase, and heading back to the office a mere 12 weeks after my first daughter was born. I had a snazzy new Medela Pump in Style tote, which I slung over the arm that wasn’t carrying my purse and my briefcase. I felt daunted by asking my employer, “Can I please have a lock on my office door? I wouldn’t want anyone busting in on me when I’m pumping.” I also remember the mortification of heading to the kitchen/break room on my floor, carefully yet discretely carrying bottles of my breast milk and breast shields down the hall, hoping I wouldn’t run in to anyone (literally or figuratively) on my multiple daily journeys to store my milk and clean my pumping gear. I decided not to even try to pump at the office after my second daughter was born and weaned her at the tail-end of my maternity leave. Even though I was working for an employer who was ahead of the curve with respect to providing robust maternity benefits and accommodations for nursing moms, I certainly didn’t last long pumping in the office (maybe a few weeks?) after my first pregnancy. So many working women have had to endure balancing difficult jobs and their newborns’ nutrition under very trying circumstances, and now laws are being passed and case-law is developing to try to change that.

We have all heard more than we probably have ever wanted to about the Patient Protection and Affordable Care Act, also known as “Obamacare.” Before, during, and now several years after its passage, we are inundated with news articles and other media coverage regarding the law. But did you know that a small and not widely discussed portion of the law directly provides benefits for working, nursing mothers?

Effective March 23, 2010, Obamacare amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place other than a bathroom for an employee to express breast milk. You can see the Department of Labor’s Fact Sheet here.

Because of Obamacare, you can't be required to nurse HERE anymore.
Because of Obamacare, you can’t be required to pump HERE anymore.

This law could arguably apply to all working women in the country, buttressing the concern before its passage that there are more working mothers than ever, and that there has been a growing trend for women to breastfeed their babies.  Before the passage of Obamacare, Texas already had a law in the state’s Health Code that states “[a] mother is entitled to breast-feed her baby in any location in which the mother is authorized to be,” which presumably includes the mother’s workplace. In the same set of laws, our own Texas legislature “recognizes breast-feeding as the best method of infant nutrition.”

While few courts have reviewed alleged violations of a nursing mother’s right to a reasonable time and private place to express milk, a recent case from our own Fifth Circuit Court of Appeals created a new way for a working mother to bring a lawsuit against her employer: lactation discrimination. The court held that lactation is a medical condition related to pregnancy and that an employer cannot discriminate against an employee (i.e., fire her or take some other adverse employment action against her) because she is lactating or expressing milk.

The law is still developing in these areas, and it will be interesting to see how courts continue to clarify the laws over time. This is continuing to be a hot topic for employers, and just as recently as July 14, 2014 the Equal Employment Opportunity Commission issued new Enforcement Guidance on Pregnancy and Related Issues,” providing the Commission’s take on the rights of pregnant mothers in the workforce and new mothers who are returning to work.

 

Kelly
Kelly lives in Terrell Hills and is a full-time working mom of 4 in a never-a-dull-moment blended family. Her twin stepsons, Eric & Grant, are high school juniors. Her daughters, Eleanor and Sadie, are in junior high and elementary school. She and her husband, Ryan, are both attorneys. When she is not working and "air-traffic controlling" her busy brood, she and her family enjoy exploring San Antonio and the surrounding area.