Lactation Rights: Supporting parents in public, work and school

Jessica Lee, Staff Attorney

(She/they)

www.pregnantatwork.org

Workplace Support Needs & Best Practices

“ It just became too much. It affected my

home life. It affected

my baby. My milk

supply dropped.

It was spiraling

downhill.

Barbara,

Emergency Room Nurse

What do lactating workers need?

Breastfeeding workers who had access to both time and space were 2.3 times as likely to be breastfeeding exclusively at 6 months1

2.3

TimePrivate,

clean spaceOther reasonableaccommodations

1 KB Kozhimannil et al. (2015). Access to Workplace Accommodations to Support Breastfeeding After Passage of the Affordable Care Act. WomensHealth Issues, 26 (1).

Health Consequences of Breastfeeding Discrimination

Exposed: Discrimination Against Breastfeeding Workers. https://www.pregnantatwork.org/breastfeeding-report

• Painful engorgement

• Clogged ducts

• Mastitis

• High stress

• Decrease in milk supply

https://www.pregnantatwork.org/breastfeeding-report

Best Practices for Care Providers

ii

✓Be informed

Best Practices for Care Providers

ii

✓Be informed

✓ Talk about pumping early:• What does daily pumping look like? How can they

prepare?• Encourage planning before the baby is born• Remind her that legal and other support exist

✓ Spot workplace issues:Is your patient back at work/school and seeking help for

• Reduced supply?• Recurrent mastitis or plugged ducts?• Engorgement?

There may be a workplace factor!

Best Practices for Care Providers

✓Be informed

✓ Talk about pumping early

Best Practices for Care Providers

ii

✓Be informed

✓ Talk about pumping early

✓ Spot workplace issues

✓ Write an effective work note

Lactation Legal Rights: Workplace

Break Time and Space: Minnesota Stat. § 181.939

Reasonable Pumping Breaks

Lactation space

• “Reasonable” breaks do no unduly disrupt the operations of the employer

• Unpaid except where employee is still working, is using salaried flex time or is entitled to paid break time

• Private space• Near the work area• Access to electrical outlet• Not a bathroom or toilet stall

Minnesota PWFA: Who does it apply to?(Minn. Stat. § 181.9414)

• Employers with 21 or more employees (other laws protect all employees)

• Employees with health conditions related to pregnancy or childbirth (including lactation). This includes trans and GNC people.

• No profession/industry-wide exemptions

Minn. PWFA: What are accommodations?

“Accommodations” are changes to how, when, or where an employee works in order to allow the employee to keep working and meet their health needs.

“Reasonable Accommodations” do this without causing an undue hardship for the employer.

Minn. PWFA: Common Accommodations

Storage

• Milk is best kept cool• Common refrigerators acceptable (per

CDC, OSHA)• If no refrigerator, permission to bring a

cooler

…a change in the work environment or in the way

things are customarily carried out…

Photo Source: United States Breastfeeding Committee

Minn. PWFA: Common Accommodations

Changes in job

• Temporary transfer • Temporary job restructuring• Modified work schedules

…a change in the work environment or in the way

things are customarily carried out…

Minn. PWFA: How are they provided?

Interactive Process

✓ Timely✓Good faith✓ Interactive ✓Process

Note from provider may be required.

If original accommodation request was not reasonable, what other options are available?

What does this look like for a worker with low job security?

What is an undue hardship?

Accommodations typically do not need to be provided if they cause an “undue hardship” because they are significantly difficult or expensive.

High Bar for Lactation Accommodation Exemptions:• Most lactation accommodations are simple and

cheap

• The fact that employers must provide accommodations under other laws can be used as proof it doesn’t cause an undue hardship

Photo Source: United States Breastfeeding Committee

Intersection of laws

Issue Minn. PWFA(Minn. Stat. § 181.9414)

Minn. Breastfeeding Law(Minnesota Stat. § 181.939)

Federal Break Time for Nursing Mothers

(FLSA and ACA)

Employer Coverage

21 or more employees

(Possible exemption for undue hardship)

All

(Possible exemption for undue disruption)

All(Possible exemption for hardship only for those with fewer than 50

employees)

Employee CoverageAll All Only those eligible for overtime

Break TimeAs often as needed. If unreasonable other accommodations are considered

As often as needed, so long as no undue disruption.

Reasonable break time as often as needed

Break PayUnpaid unless working, taking existing paid breaks, pay negotiated in CBA, or paid breaks are provided to others in similar situation

Lactation Space As needed, not a bathroom Private, near workspace, not a bathroom, electricity available

Protected from view and free from intrusion, not a bathroom

Child Age No limit “Infant” Under 1 year

Other Accommodations Any reasonable accommodation None None

Enforcement State agency, lawsuit State agency, lawsuit Federal agency, lawsuit

Scenario

Vanessa is a housekeeper at a hotel. Her boss is okay with her taking breaks, but it takes too long to reach the lactation room.

When she doesn’t complete the assigned number of rooms she is penalized—but she can’t clean those rooms and travel to the lactation space.

What laws apply? What are her options?

Federal Anti-Discrimination Law

Sex discrimination: treating a worker differently “on the basis of sex” in a way that impacts the terms or conditions of employment.

ii

Prohibited by federal Title VII (Pregnancy Discrimination Act) for employers with more than 15 employees. May also be prohibited by Minnesota law.

Because of sex =

because of pregnancy & related medical conditions

= because of lactation

Scenario

Erica works at a small restaurant. She is never allowed to take lactation breaks when she needs them even though other employees take smoke breaks as-needed. Erica’s boss tells her they’re just too short-staffed to guarantee breaks.

What laws apply? What are her options?

Legal Impact of COVID-19 Crisis

Have legal rights changed?• “Essential” workers still protected• Reasonable and undue hardship

tests the same, but context has changed.

• Don’t forget PWFA interactive process

PWFA safety options for workers• Accommodations to avoid/protect

from exposure• Work from home as

accommodation• Changes to rules to meet needs

Care provider guidance available at: https://worklifelaw.org/wp-content/uploads/2020/11/Prenatal-Care-Provider-Guidance.pdf

Scenario

Monique is a teacher. Her baby is just weeks old, but as an essential worker, she is being told to come back to work. Monique is worried about whether she will be able to pump as often as she needs. She is also concerned about her health and the health of her newborn due to workplace exposure to COVID-19.

What laws protect Monique? What are her options?

Scenario

What are you hearing from lactating workers?

Lactation Legal Rights: Public

Scenario

Erica works at a small restaurant. She is never allowed to take lactation breaks when she needs them even though other employees take smoke breaks as-needed. Erica’s boss tells her they’re just too short-staffed to guarantee breaks.

New development: Erica’s boss also told her she cannot breastfeed in the parking lot during her breaks.

Breastfeeding in Public(Minn. Stat. § 145.905)

• Does not matter whether parent’s body is covered

• Focus = permission to be present on property

• Employers may deny permission to children

• Permission should not be conditional on method of feeding

• Other work rules still apply

“A mother may breastfeed in any location, public

or private, where the mother and child are

otherwise authorized to be…”

Scenario

Erica works at a small restaurant. She is never allowed to take lactation breaks when she needs them even though other employees take smoke breaks as-needed. Erica’s boss tells her they’re just too short-staffed to guarantee breaks.

New development: Erica’s boss also told her she cannot breastfeed in the parking lot during her breaks.

What are her rights?

Scenario

When Jennifer’s childcare had to close due to COVID-19, Jennifer’s professor told her that she could bring her baby to class.

One day Jennifer fed her baby in class. After class, the professor said it was inappropriate, and the baby was no longer welcome.

What are her rights?

Student Breastfeeding Protections

Student and Trainee Rights

Who is covered?Students/trainees in K-12 school,

college, university, vocational

school, other academic institution or

government-funded training

program

Where are they covered?Any class, externship, internship, or

training program that is

sponsored/required by their

institution and overseen by their

institution

How are they covered?

Title IX prohibits

discrimination on the

basis of sex and

pregnancy-related

conditions

Students’ Rights

Time for expressing milk

Private, sanitary location

• “Medically necessary” absences or tardiness should be excused, without penalty

• Students may need to provide a doctor’s note

• Must be functional• Schools must protect students from

harassment, intimidation, and discrimination

Without policies, how will students or educators know about these rights? Where can they go for help?

COVID-19 and Student Rights

Protections apply even in

virtual sessions

Scenario: Revisited

When Jennifer’s childcare had to close due to COVID-19, Jennifer’s professor told her that she could bring her baby to class.

One day Jennifer fed her baby in class. After class, the professor said it was inappropriate, and the baby was no longer welcome.

What are her rights?

Scenario

Maria only has 10 minutes between classes that each run 2 hours long. She wants to arrive to class 10 minutes late so that she can fit in a pumping break, but Maria’s professor tells her that she will have to deduct participation credits.

What are Maria’s rights?

At the end of the semester, Maria is worried about exams. The school has a policy that extensions are only provided for disabilities.

What are her options?

Breastfeeding Students

• Model Campus Breastfeeding Policy

• FAQs for students and administrators

• Helpline

• www.ThePregnantScholar.org

http://www.thepregnantscholar.org/

Writing Effective

Accommodation Notes

How a Note Can Make a Difference

ii

Educating the decisionmaker

Empowerment!

Making the case for patients in need of an accommodation

“ Having to choose to leave a career I loved was one of the most

difficult decisions of my

life. But I had to do

what I thought was best

for my family.

Stephanie Hicks

Writing Effective Notes for Lactation Accommodation

Before you write:✓ Understand the employee’s and employer’s needs

Does the patient need time and space, or something more?Has she had breastfeeding complications?Are there special work conditions of concern?

What seems to be the employer’s barrier to providing what she needs?

Are there others who have similar conditions accommodated?Does the employer know there is a law?

Writing Effective Notes for Lactation Accommodation

Educate the decision maker about breastfeeding and pumping:

• Explain that breastfeeding (and regular expression of milk) is important and recommended

• Make clear that this is important for the patient’s health, and that pumping accommodations are medically necessary

Writing Effective Notes for Lactation Accommodation

Educate about breastfeeding and pumping

Such as• The need for a private space other than a bathroom• The frequency and duration of breaks

Be specific about the patient’s needs:

“As needed, but at least X minutes of break time every Y-Z hours.”

• Unique accommodations, if needed (e.g. avoiding COVID-19 exposure, desk duty, uniform modification)

• Medical conditions or impairments that impact her needs

Be sure to mention if the patient has a medical condition or impairment or history of complications.

Writing Effective Notes for Lactation Accommodation

Educate about breastfeeding and pumping

Be specific about the patient’s needs

Communicate that the accommodation is temporary and the patient is able tocontinue working/studying

Double check that you answer Why? When? Where? And, for How Long?

Please Don’t Fire My Patient

Model note available at: www.PregnantAtWork.org/healthcare-professionals/breastfeeding

Questions?

Want to know more? Contact us!Presentation follow up questions: Email presenter Jessica Lee at leejessica@uchastings.edu

Free legal hotline for workers and students with general breastfeeding or caretaking issues call 415-703-8276 or email hotline@worklifelaw.org.

Free legal hotline for workers and students with COVID-19 related issues:

415-851-3308 or email COVID19Helpline@worklifelaw.org

For guides on paid COVID-19 leave and accommodations:https://worklifelaw.org/covid19/helpline-resources/

Resources and practical tips for health care providers and employees:www.pregnantatwork.org/

Legal resources and practical tips for studentsand college administrators:www.ThePregnantScholar.org.

mailto:leejessica@uchastings.edumailto:hotline@worklifelaw.orgmailto:COVID19Helpline@worklifelaw.orghttps://worklifelaw.org/covid19/helpline-resources/http://www.pregnantatwork.org/http://www.thepregnantscholar.org/