Published in Business NH Magazine (2/1/2019)
Returning to work after giving birth is a major challenge for working moms, including organizing the logistics of lactation while at work. Mother Nature does not yield to the 9-to-5 workday, and puts demands on new mothers' bodies.
One issue new moms face is figuring out where to pump breast milk while at work. Not all jobs come with cozy offices whose doors can conveniently shut when their occupants require privacy. Those who work in food service, for example, do not have the opportunity to retreat behind office doors. Nor do all break rooms provide privacy.
Many employers might think the solution is for the woman to pump her breast milk in the bathroom-a place where she is guaranteed at least some degree of privacy. However, these employers would not be complying with federal law. Under federal law, an employer must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." Although there is an exception to this law for certain employers with 50 or fewer employees, the best practice for all employers is to establish a lactation room for lactating mothers as soon as an employee returns from maternity leave (if not sooner).
Time to Pump
Another task is coordinating off-theclock time for lactation. Don't call it a "break." Pumping breast milk is hardly a relaxing activity, and does not necessarily provide mothers with much-needed respite after a few hours on the job. Nevertheless, pumping breast milk takes time, and the clockwork routine of a company's scheduled break times does not necessarily coincide with biology.
Lactating moms need to pump regularly to avoid health complications and serious discomfort. A woman returning to work after giving birth might feel guilty for requesting these types of accommodations, and other employees might give her a hard time-intentionally or not-for what they see as shirking work responsibilities.
However, under federal law, an employer must also provide "a 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 the need to express the milk." Employers need to give a reasonable amount of time- time that does not necessarily equate to everyone else's coffee or lunch break. Further, employers have to allow their lactating employees to express breast milk each time the employee needs to do so.
Arranging these logistics, such as providing a lactation room and reasonable breaks, does not necessarily mean that all employers are in the clear when it comes to complying with federal law on this is- sue. Employers need to instill a positive workplace culture surrounding lactation. That does not mean that every employer must provide new, hospital-grade pumps to show that he or she is "okay" with lactation. But it does mean not condoning negative comments and harassing attitudes, and educating workers about policies and what isn't acceptable. Offensive jokes or comments-or even persistent questions from colleagues that make a woman feel uncomfortable-may constitute unlawful harassment if they are pervasive enough.
Put simply, employers may become liable for the conduct of supervisors, coworkers, or even non-employees over whom the employer has some control (such as vendors who supply break room coffee or individuals who regularly come in to service equipment at the workplace). Plus, news travels fast, and a workplace with a negative atmosphere for new mothers is not in a good position to attract new employees.
Terminating a woman's employment because she has made requests for reasonable accommodations to pump breast milk-or even to breast feed her infant-could constitute wrongful termination. A NH woman brought suit against her former employer, who terminated her after she asked to breast feed her newborn son-who would not take a bottle-during the workday. That case will go to trial in September.
Although NH has no law parallel to the federal law that provides protections to nursing mothers, there may be legislation on the horizon that could make discrimination against nursing mothers unlawful. Given these potential changes, the best way to navigate this developing area of employment law will involve open discussions with employees who need to pump breast milk. Taking care of those needs-which might not require much besides more break time in a private room-can go a long way toward smoothing an employee's transition back to work after giving birth. *
Amanda Quinlan is an associate in Employment Law at McLane Middleton, PA, with offices in Concord, Manchester, and Portsmouth, and Boston and Woburn, Mass. (603) 628-1338 or [email protected].