A Guide to Breast-Feeding Policies

In addition, under the PPACA, the employer must also provide a reasonable place, other than a bathroom, for the employee to express breast milk. An employer that employs fewer than 50 employees is not subject to these requirements if it can show that these requirements impose undue hardship.

The PPACA specifically states that its requirements do not pre-empt a state law that provides greater protections to employees. At this time, 45 states, including Texas, have laws relating to nursing mothers. Texas Health Code ' 165.002 states that a “mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.”

How to Ensure Compliance

To ensure compliance with the law, the legal department first should ensure that the company designates a reasonable break time and private space for nursing mothers. Some of the factors to consider in determining whether the time and place needed for a nursing employee to express milk are “reasonable” and “private” include:

• The time it takes to actually use the lactation space and the wait, if any, to do so;
• Whether the employee has to retrieve her pump and other supplies from another location and then unpack them;
• Whether there is a sink and running water nearby for the employee to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or whatever additional steps she will need to take to maintain the cleanliness of the pump attachments;
• The time it takes for the employee to store her milk, either in a refrigerator or personal cooler;
• Whether there is a table, chair and electrical outlet available in the room; and
• Whether the room locks, it can be secured from the inside or it is marked as private.

The legal department should work with the company to develop a specific breast-feeding policy. Texas law, for example, does not require this, but doing so provides clarity and consistency in dealing with any employee requests that arise. The policy should outline its requirements and state the organization's commitment to providing a private place and time for employees to attend to their breast-feeding needs.

What the Policy Should Include

The policy should encourage nursing mothers to discuss with their managers what they expect to need in terms of frequency and timing of breaks to express milk. It also should encourage managers to discuss with nursing employees the location and availability of space for expressing milk, as that will affect the time required for the breaks. These discussions will help employers and employees to develop shared expectations and an understanding of the process.

The policy crafted by in-house counsel also should explain the compensability of such breaks and the procedure for requesting the breaks. It should note that this ability to take such breaks lasts for up to one year after the birth of a child (or more if the organization or state laws provide more).

The legal department should make sure that the policy accounts for multiple nursing mothers to avoid scheduling conflicts, and tracks how frequently employees use the policy. It also is wise to develop a procedure to minimize a nursing mother's potential embarrassment in requesting a break under the policy.

Finally, as with all employment-related policies, clear communication is of utmost importance. Provide the policy to everyone ' not just new hires, but current employees as well. Educate managers about the policy's requirements, so they do not mistakenly suggest things the law prohibits, i.e., “Can't you just pump in the bathroom?”

Customers

The legal department's concerns are not limited to employees. Providing wise counsel means advising the company regarding customers. As noted above, Texas law gives mothers the right to nurse anywhere they are “authorized to be.” While a bit vague, this language clearly means the nursing mother's place of employment. But ' note to lawyers whose companies are in the retail/public-use industry ' it also could encompass a place of business.

Do not merely “hope” managers and supervisors will know the law when faced with a customer who is a nursing mother, other customers' complaints or employee uncertainty. You cannot risk a manager making the wrong call when faced with the situation ' e.g., “Please nurse somewhere privately, not in our store.” Instead, consider implementing a policy that clarifies what to do for a nursing customer, such as instructing employees not to make her feel uncomfortable by staring. This will avoid violating the law ' and negative publicity.

While the Texas law, in its brevity, does not provide any guidance on whether a business has the right to ask a nursing mother to nurse somewhere other than where she chooses, a brief survey of breast-feeding advocacy websites indicates a belief that the right to breast-feed applies in any location and that no one should ask her to move. Therefore, until courts or legislators clarify or expand the law, a prudent legal department will craft a policy promoting sensitivity and awareness of what to do when the issue arises, whether in the context of nursing employees or nursing customers. In the case of the latter, the manager and employees of the business should be told to treat the nursing mother with respect and to leave her alone. If other customers complain to the manager, he can reply that the mother has a right to nurse her child under state law, if that is correct in your state.

Conclusion

The time invested in crafting a policy is time well spent. Showing support for a company's employees and customers is never a bad thing ' after all, everyone has a mother.

Art Lambert is a director in Kane Russell Coleman & Logan's labor and employment section in Dallas. He is board certified in labor and employment law by the Texas Board of Legal Specialization. E-mail: [email protected] This article also appeared in The Texas Lawyer, an ALM sister publication of this newsletter.

“Nurse-ins” have been in the news recently, as mothers stage peaceful protests aimed at promoting women's rights to breast-feed their babies in public. These events should prompt in-house counsel to examine their companies' breast-feeding policies, including how they handle employees who need time to attend to breast-feeding responsibilities while at work, and how employees interact with customers who are nursing.

What You Should Know

In March 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA) and the Reconciliation Act of 2010. PPACA ' 4207 amends ' 7 of the Fair Labor Standards Act (FLSA) to require an employer to provide reasonable break time for a non-exempt employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk. The employer is not required to compensate an employee receiving reasonable break time for the purpose of expressing milk. However, when an employer already provides compensated breaks, an employee who uses that break time to express milk must be compensated the same as other employees.

In addition, under the PPACA, the employer must also provide a reasonable place, other than a bathroom, for the employee to express breast milk. An employer that employs fewer than 50 employees is not subject to these requirements if it can show that these requirements impose undue hardship.

The PPACA specifically states that its requirements do not pre-empt a state law that provides greater protections to employees. At this time, 45 states, including Texas, have laws relating to nursing mothers. Texas Health Code ' 165.002 states that a “mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.”

How to Ensure Compliance

To ensure compliance with the law, the legal department first should ensure that the company designates a reasonable break time and private space for nursing mothers. Some of the factors to consider in determining whether the time and place needed for a nursing employee to express milk are “reasonable” and “private” include:

• The time it takes to actually use the lactation space and the wait, if any, to do so;
• Whether the employee has to retrieve her pump and other supplies from another location and then unpack them;
• Whether there is a sink and running water nearby for the employee to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or whatever additional steps she will need to take to maintain the cleanliness of the pump attachments;
• The time it takes for the employee to store her milk, either in a refrigerator or personal cooler;
• Whether there is a table, chair and electrical outlet available in the room; and
• Whether the room locks, it can be secured from the inside or it is marked as private.

The legal department should work with the company to develop a specific breast-feeding policy. Texas law, for example, does not require this, but doing so provides clarity and consistency in dealing with any employee requests that arise. The policy should outline its requirements and state the organization's commitment to providing a private place and time for employees to attend to their breast-feeding needs.

What the Policy Should Include

The policy should encourage nursing mothers to discuss with their managers what they expect to need in terms of frequency and timing of breaks to express milk. It also should encourage managers to discuss with nursing employees the location and availability of space for expressing milk, as that will affect the time required for the breaks. These discussions will help employers and employees to develop shared expectations and an understanding of the process.

The policy crafted by in-house counsel also should explain the compensability of such breaks and the procedure for requesting the breaks. It should note that this ability to take such breaks lasts for up to one year after the birth of a child (or more if the organization or state laws provide more).

The legal department should make sure that the policy accounts for multiple nursing mothers to avoid scheduling conflicts, and tracks how frequently employees use the policy. It also is wise to develop a procedure to minimize a nursing mother's potential embarrassment in requesting a break under the policy.

Finally, as with all employment-related policies, clear communication is of utmost importance. Provide the policy to everyone ' not just new hires, but current employees as well. Educate managers about the policy's requirements, so they do not mistakenly suggest things the law prohibits, i.e., “Can't you just pump in the bathroom?”

Customers

The legal department's concerns are not limited to employees. Providing wise counsel means advising the company regarding customers. As noted above, Texas law gives mothers the right to nurse anywhere they are “authorized to be.” While a bit vague, this language clearly means the nursing mother's place of employment. But ' note to lawyers whose companies are in the retail/public-use industry ' it also could encompass a place of business.

Do not merely “hope” managers and supervisors will know the law when faced with a customer who is a nursing mother, other customers' complaints or employee uncertainty. You cannot risk a manager making the wrong call when faced with the situation ' e.g., “Please nurse somewhere privately, not in our store.” Instead, consider implementing a policy that clarifies what to do for a nursing customer, such as instructing employees not to make her feel uncomfortable by staring. This will avoid violating the law ' and negative publicity.

While the Texas law, in its brevity, does not provide any guidance on whether a business has the right to ask a nursing mother to nurse somewhere other than where she chooses, a brief survey of breast-feeding advocacy websites indicates a belief that the right to breast-feed applies in any location and that no one should ask her to move. Therefore, until courts or legislators clarify or expand the law, a prudent legal department will craft a policy promoting sensitivity and awareness of what to do when the issue arises, whether in the context of nursing employees or nursing customers. In the case of the latter, the manager and employees of the business should be told to treat the nursing mother with respect and to leave her alone. If other customers complain to the manager, he can reply that the mother has a right to nurse her child under state law, if that is correct in your state.

Conclusion

The time invested in crafting a policy is time well spent. Showing support for a company's employees and customers is never a bad thing ' after all, everyone has a mother.

Art Lambert is a director in Kane Russell Coleman & Logan's labor and employment section in Dallas. He is board certified in labor and employment law by the Texas Board of Legal Specialization. E-mail: [email protected] This article also appeared in The Texas Lawyer, an ALM sister publication of this newsletter.