Tuesday, June 21, 2016

Preventing Employees from Breastfeeding at Work Is Illegal

To the employers reading this post, I have some advice: have policies in place that allow your employees to breastfeed. Frontier Airlines recently learned the dangers of not having such a policy. The airline made news when four of its female pilots filed a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal workplace laws. 

The complaint claimed that after the pilots returned from maternity leave, the airline did not provide proper accommodations for the women to breastfeed and pump breastmilk. Three of the pilots claimed that they suffered breast tissue infections because they were not able to pump breast milk when they needed to do so. One pilot also claimed that she was disciplined for pumping breast milk on a plane. 

Both federal and state law requires employers to provide their employees with an opportunity to breastfeed and/or pump breast milk. The Affordable Care Act (aka Obamacare) requires employers to provide certain employees with breaks to express milk for up to one year after the employee has given birth. The law also requires the employer to provide the employee with a private place to do this. A bathroom stall does not satisfy this requirement; the employer must provide a room or some kind of private space where the employee can breastfeed. 

27 states have also passed laws that have to do with breastfeeding in the workplace. Illinois is one of those states, having passed the Nursing Mothers in the Workplace Act. That law requires employers with more than five employees to provide unpaid break time each day to employees who need to express breast milk. The law requires employers to make efforts to provide a room or other private space where the employee can express the milk. Again, making an employee express milk in a toilet stall does not satisfy this requirement. 

Additionally, in light of the Supreme Court’s ruling last year in Young v. UPS, the Americans with Disabilities Act may requires employers to allow their employees to breastfeed, as this would be considered a reasonable accommodation. The EEOC supports this interpretation of Young v. UPS. 

Another interesting aspect of the Frontier case was the pilots’ claim that Frontier would not allow the pilots to work the last 8-10 weeks of their pregnancy, as the pilots allege that the airline forced them to take unpaid leave during this time. As we have discussed, not permitting a pregnant employee to work is probably illegal, even if the employer is trying to protect the employee

Issues involving pregnancy, maternity/paternity leave, and paid time off have been hot areas of labor and employment law recently, with a number of new laws being passed affecting how employers must treat pregnant employees and new parents. Employers should consider consulting with an experienced attorney to ensure that their policies take these new laws into account.