A lawsuit filed in July by a paramedic with the Tucson, AZ, Fire Department has brought to the forefront a little-known provision of the Patient Protection and Affordable Care Act (PPACA), also called the Affordable Care Act (ACA) or “Obamacare,” that requires employers to make certain workplace accommodations for lactating mothers. The implications of this law for fire and emergency services providers go beyond most other occupations and are the focus of this column.
Carrie Clark filed suit in Pima County Superior Court on July 23, 2014, claiming the City of Tucson refused to accommodate her nursing-related requests by failing to provide her with a private area in her fire station in which she could express breast milk or reassign her to a station that could accommodate her needs.
At the time, Tucson had one fire station, Station 12, that had a designated area available for women to pump breast milk. The room even had a refrigerator where expressed milk could be stored. According to Clark, her request to be assigned to Station 12 was “ignored.”
The city reportedly offered Clark the use officers’ rooms in her assigned station. These rooms are private office/bedrooms used by captains and chiefs. Clark declined to use those rooms, claiming it would require her to interrupt – and at night awaken – those officers every two to three hours, necessitating them leaving the rooms.
Clark alleges that after informing her superiors of the federal requirements, she was retaliated against and subjected to further harassment. The case serves as a wake-up call for fire departments that have not considered their responsibility under federal and state laws to accommodate employees who are nursing recently born children.
Federal and state protections
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of gender. Title VII had been interpreted to include discrimination against females on account of pregnancy and maternity-related issues such as nursing. In addition, the Pregnancy Discrimination Act of 1978 directly prohibits discrimination against pregnant employees. There are also a number of state laws that have historically offered protection to pregnant and lactating employees.
While these discrimination laws provided a measure of protection to nursing mothers, it wasn’t until 2010 and the enactment of the Affordable Health Care Act that employers were under an affirmative obligation to do more than simply “not discriminate.”
Section 4207 of the Affordable Health Care Act amended the Fair Labor Standards Act (FLSA) to require an employer to provide a lactating employee with reasonable break time each day following the birth of a child so that she may express breast milk. The law went into effect on March 23, 2010, but with all the fanfare related to the health care provisions of Obamacare, the nursing mother’s provision has been overlooked by many.
Under the law, the employer is not required to compensate an employee for the breaks, but must provide a suitable location for the employee to express breast milk. The law specifically states that a bathroom is not a suitable location. The requirement that an employer accommodate a nursing mother extends until the child’s first birthday.
The language of the applicable FLSA provision reads as follows:
29 USC §207(r) Reasonable break time for nursing mothers
(1) 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 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.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.
Besides the federal law, 25 states have enacted laws protecting a woman’s right to breastfeed in the workplace, including Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming. New York has even enacted a Breastfeeding Mother’s Bill of Rights.
Impact on fire departments
The protection given to nursing mothers under the Affordable Care Act and comparable state laws impacts fire department in primary three ways: fire station design; organizing the workday; and staffing.
• Fire station design. Section 207 (r) does not specify what the area provided for expressing break milk has to consist of beyond stating that it cannot be a bathroom, and must be “shielded from view and free from intrusion from coworkers and the public.” U.S. Department of Labor guidance suggests that the area need not be a permanent or dedicated room, and that even a temporary location available on an as needed basis will suffice. Areas that do not offer a suitable sanitary environment will not.
For fire stations that already provide individual sleeping quarters for each employee, the requirement to accommodate breastfeeding employees should have minimal impact structurally on station design. Stations that have dormitory-style sleeping quarters or even semi-private rooms will need to identify suitable private locations as the need arises. All new fire stations should be designed with the nursing mother’s laws in mind.
A question that commonly arises is how accessible does the area need to be to the nursing mother. Most authorities recommend it be in close proximity to the workplace, certainly a distance that will not burden the overall time required for the break. Given the reality of the fire service, including the fact that workplaces are decentralized about the community, a strong argument can be made that each fire station should be able to accommodate a nursing mother.
• Organizing the workday. Under §207(r), a nursing mother is entitled to such time off each day as she needs in order to express breast milk. The employee has the option to remain on duty or go off duty. If the nursing mother chooses to remain on duty and is available to provide emergency response if a run comes in, the time would be compensable.
In terms of the frequency of breaks, the act is quite explicit that the breaks must be granted “each time such employee has need to express the milk.” A point of contention between the parties in the Tucson case was the city’s position that expressing milk every two to three hours is “excessive.” According to the Labor Department, “In the early months of life, a baby may need as many as eight to 12 feedings per day. This means that a nursing baby needs food every two to three hours. A nursing mother produces milk on a constant basis. If the baby does not take the milk directly from the mother, it must be removed by a pump about as frequently as the baby usually nurses.” (Wage and Hour Division RIN 1235–ZA00, dated Dec. 21, 2010.)
Given the unpredictability of the “typical” workday in the fire service, we are certain to see some challenging questions being raised. A peaceful day in the firehouse can instantly be interrupted, resulting in hours in the field. Back-to-back-to-back responses, emergency relocations and overtime assignments can all conspire to frustrate lactation accommodation plans that depend on a firefighter being at her regularly assigned station.
The issues are not totally unlike those being faced by other industries such as delivery drivers, field service technicians and even employees who are required to work for extended periods at a customer’s work site. In this regard, various portable privacy solutions have been developed for nursing mothers, and more solutions are likely to follow as more employers become aware of their obligation to accommodate.
While emergency incidents may present the most obvious challenge, fire departments should not overlook the impact of making reasonable accommodations for nursing mothers at training sessions, district inspections, and other types of non-emergency activities.
• Staffing. Probably the biggest impact that §207(r) will have on the fire service has to do with staffing of emergency vehicles if a nursing mother chooses to be completely relieved of duty to express milk.
As written, the law mandates that the employee be granted “reasonable break time…each time such employee has need to express the milk” as unpaid leave. Said another way, the employer cannot deny a nursing mother the requested unpaid break, and cannot discriminate or retaliate against her for her decision to use the break time.
If the employee decides that she cannot respond to emergencies during this break time, staffing concerns are clearly implicated. If a fire company has five firefighters assigned but can respond with a minimum of four, the situation is easily accommodated. The problem is that few – if any – fire departments these days staff with even one additional person department-wide beyond the absolute minimum necessary. As a result, a fire company that is already minimally staffed may need a relief member to be assigned (at a cost to the department) or else may have to respond understaffed or go out of service while a nursing employee is indisposed.
Section 207(r) (3) allows departments with fewer than 50 employees to claim a hardship exemption, but such a claim cannot be made by departments with 50 or more employees. In addition, the federal law trumps less-stringent state laws that commonly allow all employers to claim a hardship exemption.
Conclusion
The Labor Department has yet to issue regulations interpreting some of the thornier issues associated §207(r). Among the issues of concern to fire departments that remain unanswered:
• What constitutes an undue hardship for employers with fewer than 50 employees?
• What types of accommodations would be considered unreasonable?
• Could the mere act of transferring a nursing employee from a station that lacks proper facilities to a station with appropriate facilities violate the act as retaliation?
• What are the department’s obligations to the nursing mother at long-duration incidents? Preliminary information from the Labor Department makes it clear that the employer bears the burden for ensuring adequate facilities “regardless of where the employee is located.” While much of the Labor Department guidance assumes a commercial workplace as opposed to an emergency scene, the language makes it clear that the burden to accommodate falls upon the employer.
Perhaps Clark v. City of Tucson will help answer some of the many unanswered questions. In the meantime, what should fire service leaders do?
Probably the best advice comes directly from the Labor Department: Employers are encouraged to discuss with nursing employees the location and availability of space for expressing milk as that will affect the time required for the breaks. These discussions will help employers and employees to develop shared expectations and an understanding of what will constitute ‘‘a reasonable break time’’ and how to incorporate the breaks into the work period.
Curt Varone presents “Liability Trends and Traps: Hot Topics in 2015” and “Weingarten, Garrity and a Firefighter’s Right to Remain Silent” at Firehouse World 2015.
