By Martin Berman-Gorvine
July 10 — A new website from the Office of Women's Health at the Department of Health and Human Services provides details on and examples of workplace accommodations for lactating mothers, as required by a provision in the Affordable Care Act that amends the Fair Labor Standards Act.
The requirement to allow mothers in the first year of their child's life a reasonable amount of time and a private space at work to express milk has been in place for a few years, but is still a relative novelty to some employers.
Susan Fahey Desmond, a management-side attorney and shareholder at Jackson Lewis PC in New Orleans, called the requirement “little known” in a July 10 e-mail to Bloomberg BNA.
Under the ACA, FLSA-covered employers must “provide a private area” for employees who are nursing mothers “which must be shielded from public view and intrusion from the public and co-workers,” Fahey Desmond noted. “Any employee who is exempt under the FLSA does not have this protection; however, the DOL encourages employers to provide the benefit to all employees even if they are FLSA exempt,” she said. “Employers with less than 50 employees do not have to provide this benefit if they can show that it would cause an undue hardship,” Fahey Desmond said, but while small employers may meet this standard, what exactly it means is left undefined in the law.
Thus, Fahey Desmond added, “it is difficult to predict under what circumstances a court may find that the employer meets this standard (not to mention the costs associated with litigating the issue).”
Moreover, she said, “as the website suggests, it is often to the employer's benefit to provide this assistance to working mothers so that they can return to work and still be able to breast-feed their child. The mother is a happier employee and, theoretically, will not be out as much to deal with their child's health issues because breast milk provides many immunities that cow's milk cannot. The employer should also find that the family utilizes the group health plan less because of lower health issues.”
But employers should also know the government is wielding sticks on this issue, Michael S. Cohen, a management-side attorney and partner at Duane Morris LLP in Philadelphia, said in a July 10 interview with Bloomberg BNA. “The EEOC [Equal Employment Opportunity Commission] is spending a lot of time now prosecuting pregnancy discrimination,” he said, adding that the Department of Labor is involved as well.
Cohen noted that a typical accommodation would be to provide nursing mothers access to a lockable room. “Be open to having a conversation—if you don't have a room—to discussing different possibilities that make sense for your organization,” he advised.
For example, the OWH website explains: “Some employers with limited space for nursing mothers partner with nearby businesses willing to share their space. In some cases, businesses work with a building landlord to create space that is shared by all businesses housed in the same building.”
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The OWH website on workplace accommodations for nursing mothers can be found at http://www.womenshealth.gov/breastfeeding/employer-solutions/index.php.
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