Last year, the Supreme Court of Ohio was faced with an employment discrimination issue pertaining to whether Ohio law prohibits an employer from discriminating against employees that are breast feeding. Although the majority opinion in that case refused to address the issue leaving the issue unresolved, some of the justices unequivocally stated that Ohio’s anti-discrimination “statute prohibits employment discrimination against lactating women.”
The decision was the subject of a Reminger Report released in December 2009. Because of the unsettled nature of the issue, the December 2009 Reminger Report advised employers to proceed with caution before taking any adverse employment action against an employee post-pregnancy for conditions that stem from the pregnancy, such as lactation. The Report further advised to treat any such conditions as if the existence of the post- pregnancy condition provided the employee protection from adverse employment action based upon such conditions.
Recently, Congress amended the Fair Labor Standards Act by adding a section to the legislation that now requires employers to accommodate employees that are breast feeding. Employers are now required to provide employees “a reasonable break time ... to express milk for her nursing child.” The employer must allow the lactating employee a break every time the employee needs to express milk for one year after the birth of the employee’s child.
In general, the employer does not have to compensate the employee for any work time spent expressing breast milk. If the employer provides a uniform break time for all of its employees and if the lactating employee utilizes such break time to express her milk, the employer does have to compensate the lactating employee for the time the lactating employee spent expressing her breast milk.
In addition to providing a lactating employee a reasonable break time, the employer must also provide the employee with a place to express her milk. The place provided by the employer must be “shielded from view and free from intrusion from coworkers and the public.” The location cannot be a bathroom.
An employer with less than 50 employees can exempt itself from these requirements if fulfilling the requirements “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.” Demonstrating an undue hardship generally is difficult and requires more than an inconvenience or the incurrence of expense. Undue hardship entails such circumstances as an employer incurring unreasonably high costs to construct an addition to its building in order to provide the accommodation.
Based upon this new legislation, employers should provide their lactating employees break time to express their milk. Employers should compensate their lactating employees for such break times if the employee utilizes break time to which she is otherwise entitled. The employer should also provide their lactating employees a room or office that is completely closed off from the rest of the workplace and that has a lock on the door.
Not only does this new legislation require employers to take certain steps to accommodate their lactating employees, it may answer the issue the Supreme Court of Ohio refused to address. Although this legislation is not part of anti-discrimination laws, it provides protection for lactating employees and thereby suggests that lactating employees are a protected class. Thus, it provides further support for the position taken by some of the justices of the Supreme Court of Ohio - “that employment discrimination due to lactation is unlawful” under Ohio anti-discrimination statutes.
Based upon this legislation, employers must make efforts to accommodate lactating employees. Employers also should continue to treat any post-pregnancy condition, such as lactation, as if the existence of the post-pregnancy condition provides the employee protection for adverse employment action on the basis of such condition. Implementing such an approach and applying a uniform policy to all employees, an employer will be providing itself protection from claims of discrimination.
If you would like a copy of the legislation or the December 2009 Reminger Report or if you have any other questions regarding Employment Practices Liability, feel free to contact one of our practice area attorneys.