The Patient Protection and Affordable Care Act (the “Act”) amended the Fair Labor Standards Act (“FLSA”) to include, among other things, protections for nursing mothers in the workplace. The Act, which took effect on March 23, 2010, is the sole protection for breastfeeding mothers in the workplace in New Jersey, since there is no similar state law in place.
The Act requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Additionally, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Eleventh Circuit Decision
In Roche Surety & Casualty Co. v. Miller, the Eleventh Circuit ruled that the employer had not violated the amended FLSA because the employee had not complained about any denied accommodation requests. The employee returned to work and expressed breast milk in her office behind closed doors but had not requested alternative accommodations or break times to do so. Later, the employee sent an e-mail to her supervisor asking for a time and place, other than her office, to express breast milk.
After being terminated, the employee claimed that she had complained and been denied requisite time and space to express breast milk, but the Eleventh Circuit disagreed. The employer had space available for the employee to use and never counted the amount of times the employee took a break to express breast milk. The employee’s email to her supervisor did not constitute a complaint because she was merely making a request for accommodations and this request was neither granted nor denied. Thus, the Eleventh Circuit did not view her termination as retaliatory or discriminatory. The court held that the employer had not violated the Act’s protections for nursing mothers.
While the Eleventh Circuit decision is not binding on New Jersey employers, it nevertheless sheds important guidance on how courts may interpret the FLSA’s protections for nursing mothers. While the employer prevailed in Roche, effective communication with the employee upon her return from maternity leave could have provided the employer with a more efficient defense of the employee’s claims. Employers should meet with employees upon their return from maternity leave and provide a written policy as to the appropriate spaces in which that employee can express breast milk. The employer should also explain that there is no set limit on the frequency of such breaks. If the employer keeps the line of communication open with its employees who return from maternity leave and provides the requisite break accommodations, it will more likely avoid expensive and time-consuming litigation.