pregnancy1On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law.  The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open.

I’ve previously written extensively about the state laws covering pregnant employees before (here and here for example) so I encourage you to familiarize yourself with the current law so you can fully understand the contemplated change. But I’ll try to break it down here.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those provisions would remain unchanged under the bill.

Existing law also makes it a discriminatory practice to:

  • fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position; 

The bill would delete those three rules and instead expand existing law to make it a discriminatory practice to:

  • limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
  • fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer;
  • deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;
  • force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and
  • retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation.

The changes don’t end there.  The bill creates definitions now for “reasonable accommodation” and “undue hardship”.

  • Under the bill, “Reasonable accommodation” means, “but shall not be limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”
  • And under the bill, “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Contrast that with the ADA’s definition of those terms. If passed, the confusion for employers in interpreting these phrases are going to be plentiful.  The ADA, for example, does not define it so precisely in the law and leaves it to regulations to provide further guidance.  The undue hardship definition tracks closer but still differs:

The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

A) In general. – The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered. – In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include – (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

You will now have the same words mean different things.

Two other notes: First, the bill creates a broad definition of “pregnancy” by not just including the pregnancy and childbirth but also any “related condition, including, but not limited to, lactation”.   Contrast this with the federal Pregnancy Discrimination Act which defines pregnancy to just related medical conditions.

And second, the bill would create a new poster regarding pregnancy discrimination that employers would need to add to their facilities.

The CBIA initially expressed concern about this bill increasing the number of lawsuits and suggesting that “we should consider whether adequate enforcement of existing law is better than making businesses risk endlessly litigating what ‘could have been provided’ to employees in the past.”

For employers, this is a bill that warrants close attention; these have the potential to bring the most significant changes to this area of law in well over a decade.

Over ten years ago, Connecticut became one of the first states to mandate that employers “make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.”

I’ve discussed that law in depth in a prior post here.

So, how’s the law holding up? Well, if a recent news report is to be believed, the answer is “pretty well”.

“Turns out, many companies provide clean, comfortable lactation rooms,” said the report.

Still, there appears to be room for improvement and sometimes the conditions vary wildly.

Thus, the March of Dimes has just started a “Healthy Babies Healthy Business initiative, raising the awareness of business benefits of a family-friendly work environment.

Companies can sign-up on for access to a free Intranet service that complements human resources departments. It provides standards for workplaces to support maternal and infant health, as well as education about nutrition and stress relief. Employees can access this system, currently used by Cigna, Ebay and Walmart, from work or home.

It’s a notable initiative and, having helped out the March of Dimes in the past, it’s nice to see that organization continuing its mission while providing support to businesses in the state.

Even if employers do not adapt that program, make sure you remain vigilant in ensuring access to private rooms for new mothers.

It’s not only good business. It’s the law too.

Connecticut employers have long since had to deal with Conn. Gen. Stat. 31-40w which has stated that every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period. Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.

(For a fuller description of Connecticut law, check out one of my earliest posts here.)

But back in March, the Health Care bill contained a little-noticed provision that modified the Fair Labor Standards Act (FLSA) and required that employers provide reasonable break times for mothers to express their milk for one year after the child’s birth. I’ve previously summarized those new requirements here. 

Last week, the United States Department of Labor chimed in with a new "Fact Sheet", further explaining these new rights.  These rights were effective March 23, 2010.  Besides discussing the requirements, the Fact Sheet is notable for its descriptions on the coverage and scope of the law, and contains some important limitations on the law (which I’ve emphasized):

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA .

If you do have a situation in your workplace with a new mother, make sure you understand the scope and limits of this new law and how it interacts with Connecticut law.  Its not as easy as it appears. 

UPDATED

Credit Molly DiBianca at Delaware Employment Law Blog and Fitzpatrick on Employment Law for highlighting a little-known provision that was passed in the health care law.  As summarized by Molly:

Section 4207, titled, Reasonable Break Time for Nursing Mothers amends the Fair Labor Standards Act (“FLSA”). Because it is born to the FLSA, its provisions apply to almost all employers—every employer engaged in interstate commerce of at least $500,000 per year, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies.

And what is required? With some exceptions, an employer shall provide:

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) 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.

The language is curiously narrow.  It only seems to allow for the expressing of milk in the workplace (typically through a breast pump) and not directly breast-feeding a child.

For employers in Connecticut, however, this new law will has limited  impact because some of those protections were already guaranteed under state law and indeed, state law is a bit broader in some ways.  I’ve previously summarized these requirements in one of my earliest posts.  Connecticut law talks about allowing an employee to "breastfeed" or express milk while the federal law only seems to discuss expressing milk. But now, federal law will guarantee a break for employees whose employers are covered by the FLSA  which was not required under state law (only that an employee may use meal or break time). 

For employers addressing these issues, seeking some legal counsel on the various state and federal law requirements in this area may be needed to make sense of it all. 

(This version clarifies that a break is not mandated under Connecticut law but now is mandated under federal law for employers covered by the FLSA.) 

In the workplace, there good ideas, bad ideas, and ideas that make you scratch your head. 

Reading a recent article in Time about bringing babies into work, I was hard-pressed to place it other than in the third category.  The article cites a new "institute" called the Parenting in the Workplace Institute as saying that over 70 companies allow babies in the workplace.  Obviously, given the numbers of companies out there, it is just a tiny fraction.

The obvious question that arises for a employment law blog is: Is there any legal guidance in Connecticut about this issue?  The answer is, not really. 

For employers, it is important to understand the great amount of flexibility an employer has to set policies and procedures.  Banning children from the workplace is one of those rules.   While there may be a safety reason associated with some rules (you don’t want little Max running around a manufacturing floor), an employer may have a simpler reason — keeping the workplace a "work" place. 

That being said, suppose an employer wanted to go ahead with such a policy, are there any considerations for such a company?  The answer is yes. 

Too often, employers allow these types of actions to occur on a ad-hoc or individual basis.  From a legal perspective, that only creates more confusion and fails to set forth reasonable expectations that should be set. Questions to consider:

  • Is there an age limit or a time limit?
  • What about meetings?
  • If the employee has a business engagement, does the parent expect others to "fill in"?
  • Are there expectations about what behavior is expected from the children?
  • Can the parent bring in a crib?
  • If the employee does not have a closed office, are they going to be allowed in cubicles?
  • Are certain jobs just "off limits" for having kids around?

While some may argue that a parent would "use their common sense" in bringing a child into work, the sad fact is that each person is different with a different set of expectations.  Setting up a set of ground rules to follow (that can be adapted and updated as needed) seems a way to try to make it work.

That said, employers should exercise caution in going down this path.  Besides the legal issues in play, co-worker morale and office productivity will no doubt be affected to.  Sticking to "Take Our Daughters and Sons to Work Day" may just be the safest bet. Or the employer can offer day-care or emergency day-care services close by to make it easier for some parents.  The employer can also offer telecommuting as well.   And of course, following the rules regarding breast-feeding in the workplace is a must too. 

However, your workplace could look something like the following video, in which case, you’ve got bigger issues to worry about than establishing a policy.

Over the last few days, the mainstream press and blogosphere have been abuzz over the  Harvard Medical School student and new mother who asked for extra time during her licensing exam to express her breast milk.  Ultimately, a Massachusetts court denied Sophie Currier’s request of the National Board of Medical Examiners for the time. 

The case raises some interesting questions including, what happens if/when she becomes a doctor and makes a request to breast feed in the workplace? If she decides to practice in Connecticut, she will have a few more options.

Over five years ago, Connecticut passed a law protecting mothers who decide to breast-feed in the workplace. Specifically, Conn. Gen. Stat. Section 31-40w, provides that:

an employee may express breast milk or breastfeed at her work place during a meal or break period.

What are an employer’s obligations in Connecticut? The employer has an obligation (not discretion) to make "reasonable efforts" to provide a room, or other location near the work area where the employee can express her milk in private.  The statute also indicates that this location is to be someplace other than a toilet stall.

What are reasonable efforts? Similar to the analysis under the ADA, reasonable efforts mean any effort that would not impose an undue hardship on the operation of the employer. For large companies, a lactation room might be reasonable; for smaller employers, use of  smaller supply room or conference room, with a chair, might have to suffice.

Duke University’s Human Resources has this suggestion on how to set up an appropriate lactation room:

An unused large closet or private area off of a women’s restroom would work. The area should be at least 7 feet by 7 feet, be ventilated, have a door that locks, electrical power and be completely private. It should also be accessible to employees with disabilities.

Notably too, an employer cannot discriminate against, discipline or take any adverse employment action against an employee because she has decided to breast feed or express her milk during a rest or meal period.

New mothers are sometimes reluctant to make a request, typically because they are unaware that they have such rights.  After all, being a new parent is exhausting enough.

But for employers who want both productive employees and happy ones, taking the lead on this issue might prevent lawsuits like the one filed in Massachusetts. Have a plan on how to deal with new mothers and make them feel comfortable when they return by providing them information on the options they might have.  Better yet, designate a room ahead of time that can be used by new mothers and educate your workforce about it. 

La Leche League also has additional information on the subject for employers and employees alike. 

SEPTEMBER 26th UPDATE: An appeals judge has reversed the lower court decision, thereby allowing Sophie Currier break time.  She will now be taking her boards on October 4th.