The ACA and Nursing Mothers

While organizations are required to provide nursing mothers with a reasonable amount of break time for expressing milk and a non-bathroom space that affords privacy to do so, a recent news investigation finds many employers are struggling to properly accommodate these workers.

Monday, February 3, 2014
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Last fall, Bobbi Bockoras, who'd worked for six years as one of the few female machine operators among a predominantly male workforce at a glass-bottling factory in Port Allegany, Pa., returned to work after giving birth to her daughter, Lyla. Bockoras informed her supervisor that she would need accommodations for expressing breast milk for her newborn baby.

Bockoras' supervisors initially told her she could use the bathroom for this purpose -- in direct contravention of a provision of the Affordable Care Act, according to a lawsuit Bockoras has filed against her employer, Saint Gobain Veralia. The provision in question amends Section 7 of the Fair Labor Standards Act to require organizations with 50 or more employees to allow non-exempt employees a reasonable amount of break time for expressing milk and a space in which to do so that affords privacy from co-workers and the public -- and which cannot be a bathroom. 

Bockoras later filed a federal complaint and a charge with the Equal Employment Opportunity Commission against Muncie, Ind.-based Verallia North America, which owns the glass-making plant. In her lawsuit, Bockoras contends the company against her by changing her work schedule to varying night and day shifts after she requested a proper space that was not a bathroom in which to express milk, and then complained that the spaces subsequently offered to her were unsuitable. The areas included rooms that did not allow for privacy and a "filthy" unused locker room, according to the lawsuit.

Furthermore, Bockoras contends, when her male colleagues pounded on the door to one room while she was expressing milk and coated the doorknob of another with grease and metal shards, management did nothing in response to her complaints.

The company has filed a motion to dismiss the case and maintains that it respects all applicable laws and provides a respectful work environment.

According to a report by NBC News, 169 investigations by the Dept. of Labor found 71 violations of the ACA's nursing-mothers provision last year.

The provision has been the subject of some confusion among employers, according to employment-law attorneys.

"One of the things that's so clear in the statute is that the space can't be a bathroom, even though the natural inclination for many employers may be to say 'We have a bathroom, let them use that,' " says Noah Steinsapir, an employment attorney with Mayer Brown in Los Angeles.

HR needs to ensure the spaces made available afford the proper amount of privacy, says Robert Hingula, a management attorney with the Polsinelli law firm in Kansas City, Mo.

He cites the case of Salz v. Casey's Mktg. Co., in which a convenience-store employee complained she was forced to use a conference room for expressing milk in which a video camera had been placed. The employee alleged she was unable to relax with the camera and experienced reduced milk production.

"A conference room without video surveillance and with a door that locks should work just fine for this purpose," he says.

Employers also tend to have questions about the amount of time they're required to grant hourly employees who wish to express breast milk, and whether those workers must be paid for that time, says Hingula.

In most cases, the breaks can be unpaid time -- unless the organization allows employees to be paid during smoke breaks, in which case the nursing mothers also have the right to be paid for taking breaks, he says. 

"The specific duration of the breaks has not been clearly established, but it should include the time required for retrieving and then cleaning the breast-pumping equipment," says Hingula.

Generally, new mothers will need to take more frequent breaks to express milk earlier in the year after they give birth, and will generally require fewer breaks as the year goes on, says Victoria Zellers, an employment attorney with Cozen O'Connor in Philadelphia.

"The reasonable break time requirement is sometimes hard to interpret," says Zellers, who is on the board of the Maternity Care Coalition, which encourages new mothers to breastfeed. "Breastfeeding is highly individualized as to how often and how long someone needs to do it. The law says 'a reasonable amount of time,' but that's going to vary highly woman by woman."

Galen Sherwin, a staff attorney with the ACLU's Womens' Rights Project, which is helping to represent Bockoras, says the nursing-mothers provision has been the focus of relatively little litigation so far. However, the broader issue of employers' obligations under the right of nursing mothers to pump at work has been in the court before, under different theories, she adds, pointing to the 5th U.S. Circuit Court of Appeals' ruling last year in EEOC v. Houston Funding II Ltd.

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In that case, the appeals court overturned a ruling by a federal district court in Houston that dismissed a lawsuit brought by the Equal Employment Opportunity Commission on behalf of Donnicia Venters, who alleged she was fired after asking her employer whether she could pump breast milk at work. The 5th Circuit ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII and the Pregnancy Discrimination Act, since men -- as a matter of biology -- cannot be fired for such reasons.

"The ACA provision was a great step forward in affording rights to women they didn't previously clearly have," says Sherwin. However, she says, the provision has a shortcoming in that it does not extend protections to exempt employees.

"Basically, salaried workers are excluded under that provision," says Sherwin. "My understanding was that the provision originally wasn't intended to cover only hourly workers, but it was an oversight in drafting the law and there wasn't sufficient time to work out that oversight." 

Last May, Sen. Jeff Merkley and Rep. Carolyn Maloney (D.-N.Y.) introduced the Support Working Moms Act in Congress. The bill would expand the ACA's nursing mother's provision to include salaried workers, and is similar to a bill Merkley helped pass in Oregon. However, little progress has been made on the bill since its introduction.

Employers face little risk of paying punitive damages for failing to abide by the provision, says Hingula. Employees who feel they were denied the right to express milk at work can file an administrative complaint with the Department of Labor but most likely will not be able to file a lawsuit over the matter. They may, however, be able to file suit should they believe they were retaliated against for complaining about the matter -- as Bockoras has done, he says.

Although the ACA's breast-feeding provision does not apply to exempt employees, says Zellers, employers may want to provide the same accommodation to their exempt personnel as a matter of courtesy and good employee relations.

"It's a good best practice for employers to accommodate returning mothers in the workplace -- letting them pump at work is healthy for the mother and the baby," she says.

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