Know your rights: Pregnancy and lactation in the workplace

Part of the changes to a law created by the Affordable Care Act (also known as “Obamacare”) was an extension of the protections and rights provided to pregnant and nursing women.  In order to create these changes, the Affordable Care Act modified provisions of the Fair Labor Standards Act (FLSA). The FLSA is best known for laws governing minimum wage, overtime pay, and break schedules, and that history plays into defining who is covered by the new changes.  These modifications of the FLSA join a suite of protections available to pregnant women and new parents under the Pregnancy Discrimination Act and the Family Medical Leave Act. 


The Fair Labor Standards Act

Who's Covered, Who's Not
The FLSA applies to almost all employers including all preschool, elementary and secondary school, and institutions of higher education. Additionally, schools for disabled students and for the gifted are also covered.

The FLSA uses somewhat unique terminology when it discusses who is covered by the law’s requirements. Employees are divided into those who are “exempt” from the requirements of the FLSA and those who are “non-exempt.” This language can be confusing because it is the individuals who are “non-exempt” who are covered by the FLSA. Therefore, determining whether an individual is “exempt” or “non-exempt” is the first important step.

Executive, administrative, and professional employees, such as most teachers, who make more than $455 per week ($23,660 per year) are “exempt,” and the FLSA, including its lactation provisions, do not apply. Additionally, nurses, counselors, and other experts who meet the earning requirement are also “exempt.”

Employees who are “non-exempt” generally fall into two groups. First, any person making less than $455 per week ($23,660 per year) regardless of their job is “non-exempt.” Second, individuals who work mainly with their hands and exert physical skill and energy, regardless of their income, are “non-exempt.” Keep in mind that if an employee is “non-exempt” then the terms of the FLSA do apply.

Finally, the terms of the FLSA are a minimum that must be provided by all employers. These rights can be expanded by collective bargaining agreements to provide more rights to employees. Therefore, if there are concerns about the application of aspects of the FLSA, locals can bargain the effect in their district.

What's Covered
Employers must provide “non-exempt” employees reasonable breaks for lactation and must provide a reasonable location for up to one year after the birth of their child. The location must be private, free from intrusions, and cannot be a bathroom; however, the location does not need to be dedicated solely to the use of lactating employees.

The breaks must provide a reasonable amount of time to express milk and be provided as often as needed by the nursing mother. In general, these lactation breaks are unpaid time unless the employer provides compensated break time and the lactation time falls within that break. In addition, for the break to be uncompensated, the employee must be completely relieved from duty.

Other Protections

In addition to the Fair Labor Standards Act, there are a number of statutes that provide protections for pregnant women and new parents. These statutes are independent of the FLSA and therefore provide protection regardless of whether an individual is “exempt” or “non-exempt.”

Pregnancy Discrimination
The Pregnancy Discrimination Act (PDA) requires that pregnant employees be treated similarly to other similarly situated employees. This means that a pregnant employee cannot be terminated, disciplined, or harassed solely because of her pregnancy. Additionally, if the pregnancy causes temporary disabilities, then the employee must be treated the same as any other temporarily disabled employee, which might entail an alternative assignment, placement on light duty status, or unpaid leave.

FMLA Protections
The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid time off for qualified employees in certain circumstances. To qualify for FMLA coverage, the employee must have worked for their employer for a total of 12 months and have worked at least 1,250 hours in the previous 12 months. Once an employee meets the FMLA qualifications they can take time off when they are unable to work due to a serious health condition, to care for an immediate family member with a serious health condition, or for the birth or care of a newborn child. An individual who utilizes their FMLA leave rights cannot be disciplined or terminated for taking the time off and must be returned to the same or a similar position at the end of the leave.

Pregnant women who are suffering complications from their pregnancy that make them unable to work can take FMLA leave without worrying about endangering their employment. Additionally, their spouse or immediate family member can also take time to care for them. Once the baby is born, both parents are able to take time to bond with their newborn child.