Formula for Lactation Policies

By Jon Hyman

May. 8, 2014

Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally.

My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know about it.

What they failed to do, however, was to talk to us. It was a one-sided conversation, which failed. When dealing with employees needing to lactate in the workplace, however, employers must act with much more understanding and flexibility.

Indeed, women enjoy the legal right to reasonable breaks for lactation in the workplace. Two different laws grant this right — the Affordable Care Act and Title VII’s sex-discrimination protections.

Nationwide won the case because it had a lactation policy that provided employees reasonable access to a private room to express milk.

Under the Affordable Care Act:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if it would pose an undue hardship, which the U.S. Labor Department considers to be a significant difficulty or expense.

• You are not required to compensate nursing mothers for breaks taken to express milk. The Fair Labor Standards Act’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

• In addition to adequate break time, you also must provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from co-workers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

Separately from the ACA’s mandate, however, Title VII also provides rights to lactating employees. The lead case on this issue is EEOC v. Houston Funding, in which the U.S. 5th Circuit Court of Appeals concluded that an employee, fired after asking to pump breast milk at work, could go forward with her pregnancy discrimination claim. The court concluded that because the Pregnancy Discrimination Act also protects medical conditions related to the pregnancy, and as it is a “physiological result of being pregnant and bearing a child,” lactation is a medical condition related to pregnancy. Thus, the PDA protects lactating employees from discrimination. Think of it this way: Because men cannot lactate, it is discriminatory to deny an employee’s lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

More recently, the U.S. 8th Circuit Court of Appeals addressed workplace lactation, but with a different result. In Ames v. Nationwide Mutual Insurance, Angela Ames claimed that Nationwide discriminated against her by not providing her access to a room in which to lactate. Yet, Nationwide won the case because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days of processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness rooms, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued. The court concluded that because Nationwide tried to work with Ames, and she refused, it had not discriminated against her.

The moral is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because the court determined that she refused to be reasonable under the circumstances. Conflict requires give-and-take, not give-and-give.

As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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