New Laws Protect Pregnant and Nursing Workers

Two new federal laws that President Biden signed on December 29, 2022 will provide more protection for pregnant and nursing workers. While pregnancy discrimination is already illegal, these laws provide additional protection. 

Pregnant Workers Fairness Act: This law goes into effect on June 27, 2023 and applies to discrimination claims after that date. This law makes clear that employers with at least 15 employees must provide reasonable accommodations to pregnant workers unless providing the accommodation would cause an undue hardship on the employer. This makes pregnancy accommodations similar to disability accommodations, but pregnant workers only have to prove pregnancy, not a disability. The requirement of accommodation is triggered by a "known limitation" of pregnancy. 

This law clarifies the Pregnancy Discrimination Act, which didn't mention accommodations. The Supreme Court held in 2015 that employers must grant accommodations to pregnant employees if they provide such accommodations to other similarly-situated non-pregnant employees. The cases have been all over the place on this, so this new law makes the requirement very clear.

Cases under this law are handled the same way Title VII claims are handled.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act): This law amends the Fair Labor Standards Act to require employers to provide reasonable break times to all nursing employees, and a private place to express breast milk. This law came into effect on December 29, 2022. Employers with less than 50 employees will be exempt if compliance creates an undue hardship. Employees who work remotely have the same entitlement to breaks as other employees and must be able to do so without being observed by employers. 

The Fair Labor Standards Act already provided for break time and private space for most employees, but this law expands that protection to employees who were considered exempt from overtime and remote workers. 

Breaks are only paid if they are less than 20 minutes or if the worker is not completely relieved from duty during the break. 

Employers who break this law or who retaliate can be liable for lost wages, liquidated damages, compensatory damages, other economic losses, and even punitive damages.

See what happens when you vote well? Keep voting well, and keep fighting for employee rights.

Bye Bye Nursing Breaks: Preparing For The Trumpocalypse Part IV

If you are chomping at the bit to see the repeal of the Affordable Care Act, you probably don't know all that you are giving up. For instance, I bet you didn't realize that it was ObamaCare that brought us nursing breaks for moms.

That's right. It's the Fair Labor Standards Act which requires workplaces to give nursing moms reasonable breaks to express breast milk for a year after they give birth. The law also requires employers to provide a place, other than a restroom, shielded from view, free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

However, the amendment to the Fair Labor Standards Act that requires employers to do what basic human decency would provide anyhow was part of the Affordable Care Act.

Will Trump's repeal of the Affordable Care Act result in a repeal of this law? Right now Republicans are talking about wholesale repeal, and then maybe a grace period to find alternatives (although some want a repeal with no grace period).

In all the discussions about this repeal and what needs to be preserved, I have heard zero discussion about protecting nursing moms. Considering that Mr. Trump has called pregnancy an inconvenience to employers (then denied saying it, but he did say it), it seems unlikely that he gives one flying hoot about nursing moms in the workplace.

If you think this is an important part of the Affordable Care Act to preserve, it's time to write and call your members of Congress and Senators to tell them family values includes basic decency for new moms.

States With Pro-Employee Laws: Work Breaks For Employees

 Or, States That Don't Suck For Employees, Part VII

Some people don't believe me when I tell them that no federal law requires any breaks for employees, but it's true. No lunch breaks, rest breaks or even bathroom breaks are mandated by law (and don't tell me about OSHA and bathroom breaks*). A majority of states also don't have any laws requiring breaks for anyone but minors.

Still, if you're lucky you might live in a state that has some laws requiring work breaks. Here's how it breaks down:

• Meal breaks:  Only 20 states require any meal breaks. California, Colorado, New Hampshire, North Dakota and Washington require 1/2 hour within five hours of work. Connecticut and Delaware require ½ hour after first 2 hours and before last 2 hours for employees who work 7½ consecutive hours or more.Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont and West Virginia all have laws about meal breaks. In the other 30 states, employers are allowed to starve you.
• Rest breaks: Only nine states require any rest breaks. California, Colorado, Kentucky, Nevada, Oregon and Washington require 10 minute breaks for every 4 hours of work. Minnesota and Vermont require reasonable bathroom breaks. Illinois also has rest break requirements but only for hotel attendants. All of these states also require meal breaks. 

If you aren't in one of these 20 states, you're at the mercy of your boss to be allowed to eat, go to the restroom, or just take a stretch. Yet I still encounter folks regularly in Florida (one of the no-breaks-for-you states) that get fired after insisting on their legal right to take their lunch or rest break.

True, most bosses won't actually make you have a potty accident, but there are sadistic jerks out there who will. You do have some rights though, despite this.

Disability: If you need regular meal or bathroom breaks due to a disability, then put in a reasonable accommodation request under the Americans With Disabilities Act and have HR mandate your breaks. If the boss still won't honor your approved accommodation, report him/her to HR. If the company won't accommodate you, you probably have a disability discrimination case.

Nursing: You're entitled to a break and a private place to express breast milk if you're nursing.

Sex discrimination: I ran into a woman who was told she couldn't take her purse to the restroom when she had her period. Men had no restrictions on what they could take to the restroom. Fortunately, she reported it and HR had the sense to stop this silliness immediately.

Obviously, if the employer is only allowing employees of a particular race, national origin, age or other protected category to take breaks, that's also illegal. I shouldn't say it's obvious though, because any boss who doesn't allow reasonable bathroom or meal breaks is a sadistic idiot.



*I know I said don't tell me about OSHA, but they really are supposed to make employers allow reasonable bathroom breaks. See OSHA Standard # 1919.141(c)(1)(i): 

OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities:

Except as otherwise indicated in this paragraph (c)(l)(i), toliet [sic] facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]

This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities." "The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly."  “In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.

So yes, OSHA does state that they require employers to allow prompt bathroom breaks. I wish you good luck in actually getting OSHA to enforce this standard though. At least in Florida, they'll probably refer you to the Department of Labor, which has nothing whatsoever requiring bathroom breaks under their jurisdiction.

Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge

Employment law is a weird field to practice in. Just because something is obvious doesn’t necessarily mean the courts are going to find that it’s so. A recent case is a prime example of the Twilight Zone that is employment law. The judge in that case ruled, “lactation is not pregnancy, childbirth, or a related medical condition.” Really?

Okay, so when I managed to nurse my two children, the milk that miraculously emerged from my body had nothing to do with having been pregnant or having given birth. Good to know. Better toss all those What to Expect When You’re Expecting books now, because the judge says they’re all wrong. The court didn’t say what they thought did cause lactation. I’m waiting with bated breath for that decision.

Backing up, I guess I’d better tell you what the case was about. A woman went on approved maternity leave. When she was ready to return, she mentioned that she wondered if she could use a back room to pump milk. Suddenly, her boss hemmed and hawed and said they’d filled her job because she’d abandoned her position. I can just see him shuddering. Breast pumping? Eww. Gross.

Long story short, she lost her case for pregnancy discrimination. The law says that discrimination because of pregnancy, childbirth, or a related medical condition is illegal. EEOC was pretty sure that lactation was related to pregnancy or childbirth (probably because of all those pesky books that said so). So they sued on her behalf.

The law, at least in the Southern District of Texas, is that, "Even if the company's claim that she was fired for abandonment is meant to hide the real reason - she wanted to pump breast-milk - lactation is not pregnancy, childbirth, or a related medical condition." Courts in the 4th Circuit, 5th Circuit, 6th Circuit, and Colorado have also declined to find Title VII/Pregnancy Discrimination Act protection for nursing mothers under various circumstances.

Fortunately, this case involved a firing that happened in 2008. Yes, the justice system is ridiculously slow (she didn’t even get to trial in all that time – this was a summary judgment). Things have changed a bit since 2008, thank goodness. Twenty-four states have laws protecting women from breastfeeding discrimination at work. Congress finally woke up in 2010 and passed the Patient Protection and Affordable Care Act which, among other things amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk, and a private place other than a bathroom for her to do so.This new law only applies to employees who are not exempt from overtime.

Exempt employees in 26 states (my own Florida being one) are still apparently in the Twilight Zone where they may be subject to lactation discrimination if the judges in their state think lactation isn't caused by pregnancy or childbirth.

Donna’s tips:

a. If you are on maternity leave and getting ready to return, don’t assume that you can’t be fired for breast pumping.

b. If you are salaried and your employer considers you exempt from overtime, you might not be protected under FLSA. However, many employees are misclassified. If your employer gets this wrong, you might also have overtime claims as well as claims for breastfeeding discrimination.