I recently read an article about a paramedic in Arizona who was awarded $3.8 million by a jury as a result of a lawsuit she filed against her employer, the City of Tuscon Fire Department, for failing to provide her with a place to pump breast milk and retaliating against her after she complained.
The paramedic, Carrie Clark, alleged (among others allegations) that her employer violated the Fair Labor Standards Act (FLSA). The Affordable Care Act (ACA) amended Section 7 of the FLSA to include the “Break Time for Nursing Mothers” law. This federal law imposes certain requirements on employers with respect its nonexempt employees who are breastfeeding and need to pump for their children. In summary, the employer must provide the employee a private place to pump, other than a bathroom, and reasonable breaks each time she needs to pump for up to one year after the child’s birth. The law does not require the employer to compensate the employee for such breaks.
An employer with fewer than 50 employees may obtain an exemption from the United States Department of Labor (DOL) if it can prove that these requirements impose an undue hardship. Nevertheless, the employer should comply with the law until the DOL grants it an exemption.
The federal law does not preempt state law on this subject. Thus, state laws may provide employees with greater protections than those mandated under the federal law. State laws also may protect and give rights to employees who are not covered by the federal law. The National Conference of State Legislatures provides excellent information regarding the state laws here.
As an aside, the ACA also requires non-grandfathered health insurance plans, including those available through the health insurance marketplace, to provide health insurance coverage for some women’s preventive health services including breastfeeding support, supplies and lactation counseling. Your health insurance plan also will cover the cost of a breast pump. See here for more information and also refer to your plan guidelines. I was lucky enough to have a co-worker who was due two months before me help me through the process to get a breast pump before my maternity leave.
So, what should you do if your employer fails to follow the law despite your attempts to work with it like in Ms. Clark’s case? Meet with a reputable attorney to discuss your legal rights. From a regulatory standpoint, the DOL’s Wage and Hour Division (WHD) is responsible for enforcing the “Break Time for Nursing Mothers” law. You can call 1-866-487-9243 or contact the nearest WHD office.
This lawsuit reminded me of an article I stumbled across some months ago by Quartz at Work about the influence that co-workers have on a woman’s continued breastfeeding and pumping at work. The article discusses two studies conducted by Jie Zhuang, an Assistant Professor of Communication Studies at Texas Christian University, and her co-authors, from Michigan State University. It found that three out of four surveyed employees supported co-workers who continued to pump at work. The first thought that popped into my mind was what occupations or industries were surveyed and if it would make a difference. According to the article, the first study was designed “to be nationally representative, and included respondents from across diverse racial and socioeconomic backgrounds, employed at various types of industries.”
The second study found that more than half of the women who returned to work after maternity leave stopped pumping within one to six months. For most friends I’ve talked to and for myself, pumping is not a particularly pleasant past time. But, the duration cited in the study shows that most mothers still do not reach the American Academy of Pediatrics’s recommended one year of breastfeeding and fall far short of the World Heath Organization’s recommendation of at least two years.
Of the surveyed women who continued to pump, more than 25% acknowledged their employers for providing physical space for pumping and 15% indicated that they “relied on ‘co-workers or supervisors who directly motivated them to do so.’” The article underscores the impact that employers could make by educating their employees regarding the benefits of breastfeeding and the needs of women returning from maternity leave. This impact makes sense. The employer’s acceptance (or judgment) will filter down to it’s employees. If an employer shows that it values this aspect of its employees’ lives, most the work community will respond accordingly. I also think most employees recognize and appreciate the broader implications of the employers’ policies.
In Ms. Clark’s case, the article states that even the City’s Human Resources Department manager made some uninformed statements to Ms. Clark including “your pumping seems excessive to me” and “it seems to me that you’re not fit for duty.” The City’s values are evident if an employee in the department charged with administering and training employees takes this position.
Allowing an employee to take a few breaks during the day to pump may cause the employer and other employees a minor inconvenience. The woman pumping may feel that same inconvenience. But, everyone must balance home and work life and the breastfeeding mother needs to pump periodically to maintain her supply. Employers make accommodations for employees everyday – sometimes because they are required by law and other times just out of respect of the individual.
At the same time, supporting a breastfeeding mother can positively impact an employer’s bottom line. The United States Breastfeeding Committee lists several points in this regard: “Breastfeeding employees miss work less often because breastfed infants are healthier. Breastfeeding lowers health care costs. Breastfeeding support helps employers keep their best employees so that less money is spent hiring and training new employees. Breastfeeding employees who are supported in the workplace report higher productivity and loyalty. Supporting breastfeeding employees creates a positive public image.” In Ms. Clark’s case, just think of the money the City of Tuscon would have saved had it educated its employees and complied with the law.
My employer has agreed to a creative arrangement that allows me to reach a work life balance that I currently need. This balance allows me to remain in the workforce and maintain an intellectual outlet while earning money to help support my family. I am so appreciative of the agreement and go out of my way to express it through my work efforts and dedication. It provides a win-win situation to us both. I wish more employers had forward thinking leaders like mine.
I appreciate Ms. Clark’s courage to stand up for her rights and, in turn, for the rights of those who follow her. Kudos to the employers that have pro-breastfeeding policies in place and that comply with the law. Hopefully more employers and employees learn to recognize and value their impact on supporting mothers who choose to keep breastfeeding their children after they return from maternity leave.