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Hot Topic in the Law: Breastfeeding

September 5, 2018

Breastfeeding is a topic that comes up in employment and business practices consultations. At one time or another, most employers find themselves in a situation where one or more employees are lactating. Likewise, most businesses will likely encounter breastfeeding patrons. How an employer responds to reasonable requests for time to pump or express breast milk can be significant. At the same time, business owners may unknowingly subject themselves to liability when they communicate (either verbally or in writing) that a woman’s presence is unwelcome, unacceptable, or undesirable because she is breastfeeding a child.

           

In Michigan, nursing mothers are protected by the “Breastfeeding Anti-Discrimination Act,” MCL 37.231 et seq. The Act states that a person with control over a place of public accommodation or public service “shall not deny the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation to a woman because she is breastfeeding a child.”  The statute goes on to say that a place of public accommodation “cannot post, mail, or cause a statement to be published that a woman’s patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable because she is breastfeeding a child.”  The Act provides that a civil action can be brought for violation of the act in a court of appropriate jurisdiction for injunctive relief, actual damages, or presumed damages of $200.00.

           

This means that if a woman is breastfeeding in your place of business, you cannot ask her to stop or leave because she is breastfeeding. While you may offer a private room or area, the nursing mother may decline the offer. Of note, public nudity laws do not apply to a woman breastfeeding a child. MCL 117.4(e)(i) states that public nudity does not include woman’s breastfeeding of a baby whether or not the nipple or areola is exposed during or incidental to the feeding.

           

In the employment context, employers must comply with both state and federal pregnancy discrimination laws. Pregnancy discrimination involves treating a female employee unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. New mothers have the right to pump breast milk at work in a safe private place. A company may not fire or discriminate against a woman because she’s lactating.

           

The Affordable Care Act requires employers to provide reasonable breaks to new mothers to pump breast milk for up to one year after a child’s birth. Employers are also required to provide a safe and private place other than a bathroom to do so. There is an exception for small companies. If a company with fewer than 50 employees can prove that offering breaks or a private space would cause “undue hardship” to the company, it may not have to offer this accommodation to its employees.

           

Business owners and management staff must consider many factors when determining how to provide both reasonable break times and space for nursing mothers. For example, factors such as the location of the space and the amenities nearby (such as the proximity to employee’s work area, availability of sink for washing, location of refrigerator or personal storage for the milk, etc.) can affect the length of break an employee will need to express milk.  Breastfeeding employees can reasonably expect a room or space that will:

  • Not be a toilet stall or restroom;

  • Have a door equipped with a functional lock. (If this is not possible, the room will have a sign advising that the room or location is in use and not accessible to other employees or the public);

  • Ensure privacy from coworkers and the public;

  • If multiple users share the room at the same time, provide a mechanism to ensure privacy between them; and

  • Contain at a minimum a comfortable chair, small table, electrical outlet, and a counter or other flat surface for each nursing employee the space will support;

Helpful, but not required, additions to the room might include:

  • A location near a sink for washing hands and rinsing out breast pump parts;

  • A refrigerator;

  • Anti-microbial wipes; and/or

  • A clock.

The key to dealing with lactating employees is that they are not to be singled out or treated unfairly compared to other workers and, particularly, other workers with medical conditions. Employers may not base employment decisions on assumptions about a lactating woman’s capabilities and health concerns. The employer’s interest should always be in the quality of the employee’s work, without reference to her pregnancy.

           

If you have questions regarding best employment practices regarding breastfeeding at work, or any other employment law concern, please contact Nancy K. Chinonis (810) 232-3141 at Cline, Cline & Griffin P.C.

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