Mom fired after breastfeeding accommodation not resolved
If you work and need time to pump breast milk for your baby, the law says most employers must accommodate you. But if you need extra time to go and physically nurse your baby, you might be out of luck.
One New Hampshire mother was fired from her job because of a 15-minute block of time her employer refused to rearrange for her. Is the law the law, or should employers encourage their employees to nurse their babies?
Kate Abra Frederick was terminated from her job at the New Hampshire Department of Health and Human Services in Conway because she didn’t go back to work after maternity leave. However, she didn’t go back because her employer wouldn’t allow her to rearrange 15 minutes of her day so she could go breastfeed her baby boy. Negotiations came to a standstill, and a resolution couldn’t be found. While the Affordable Care Act requires employers to grant employees time to express breast milk with a pump, that protection doesn’t apply to actually nursing a baby — and she’s fighting back in court.
After Frederick gave birth to her son, Devon, she requested that she be allowed to add 15 minutes to her standard break time for a total of 30 minutes. This would be enough time to run over to her baby’s day care facility, breastfeed him and come back. She would then add 15 minutes on at the end of the day to make this possible.
However, her employer said no.
The Affordable Care Act (view a PDF here) was signed into law in March 2010. Section 4207 states that employers must provide “(A) a reasonable break time for an 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 the milk 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.”
This provides employers with a legal loophole. Under the Affordable Care Act, the act of nursing a baby is not included — although you can see that it doesn’t expressly state that the mother needs to be using a breast pump. Technically, one could argue that expressing milk is expressing milk, whether it’s directly into the mouth of a hungry baby or into a bottle via a pump.
Frederick is currently on unemployment while fighting a legal battle with that distinction in mind. Her baby, like many, did not take to a bottle. She needed that time to be able to physically nurse him — and when her employer refused, she was terminated.
Doesn’t make sense
Most moms we spoke with felt that the termination was wrong, and that it didn’t really make sense. Frederick reported that her office environment was fairly casual, with other employees allowed to go on walks, fetch coffee and even go on smoke breaks outside of their normally scheduled break time.
"This mother was not asking for special favors,” shared Liz, mom of two. “She was asking to adjust 15 minutes of time (that she offered to make up) to be able to breastfeed her child. For a state-run department — especially the department of child services who advocates breastfeeding your children — to be so inflexible that this woman would lose her job is beyond comprehensible."
Jackee, mom of one, totally agreed. “I wonder if her ex-employer knows that milk directly from the breast is free of bacteria, which could possibly save her from taking sick days off of work to care for her infant?” she asked. “Or the fact that a baby's saliva will actually ‘tell’ the breast that the baby is sick and requires extra antibodies and help to fight an illness, which could also prevent days off of work.”
Her case has been filed with the Equal Employment Opportunity Commission (EEOC) and she is awaiting her first mediation meeting between the organization and her former employer. She is still nursing her 14-month-old son. Law experts agree that the law might need to change to reflect the realities working breastfeeding mothers face, and for moms like Frederick, it can happen not a moment too soon.