How are lactating mothers protected in the workplace?

by Michael Haberman on October 18, 2018 · 0 comments

Two agencies provide protection to breastfeeding mothers.

For some reason, there has been a spate of articles posted in various outlets about lactating mothers. I am not sure what the cause for this is, perhaps some employer is engaging in wrongdoing or some untrained manager has denied someone the opportunity to express breast milk. Who knows? Whatever the reason, it is a good opportunity to remind employers that there are federal protections under the EEOC and the FLSA (via the ACA) for lactating mothers in the workplace.


The EEOC provides protection to lactating mothers from discrimination. Here is what the EEOC enforcement guidance says:

There are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII. Lactation, the postpartum production of milk, is a physiological process triggered by hormones. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination. For example, a manager’s statement that an employee was demoted because of her breastfeeding schedule would raise an inference that the demotion was unlawfully based on the pregnancy-related medical condition of lactation.

To continue producing an adequate milk supply and to avoid painful complications associated with delays in expressing milk, a nursing mother will typically need to breastfeed or express breast milk using a pump two or three times over the duration of an eight-hour workday. An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions,  then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.

Finally, because only women lactate, a practice that singles out lactation or breastfeeding for less favorable treatment affects only women and therefore is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.

As you can see there are many discrimination protections under the EEOC that employers could run afoul of in their treatment of lactating mothers. But the EEOC is not the only agency that protects mothers.

Protections under the FLSA

Almost nine years ago the Patient Protection and Affordable Care Act (aka Obamacare) amended the FLSA to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. In addition, the law required employers to provide a place for mothers to express breast milk. The guidance says:

An employer shall provide—

  • 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 a need to express the milk; and
  • 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.

An employer is not required to compensate the employee for this time, but you must be careful in mixing this with paid break times, so be careful in how this is set up.

If an employer has fewer than 50 employees they are not required to comply with the space requirement is it causes an undue hardship, but in all honesty, that is a tough hurdle to try to argue. I would suggest that all attempts to provide a private place should be made. Not only will it help you comply with the law, but it will also help with your employee relations and the image the organization projects. It may sway a valuable applicant in making a decision to come to work for you.

If you are already complying as you should, congratulations. If not, then now you have the guidance needed.


Are we making strides in age discrimination?

by Michael Haberman on October 15, 2018 · 1 comment

I want to applaud for a TV commercial they are running called “The box”. In an era where age discrimination is still rampant, makes a statement that being an older employee is not the career death knell that many older workers feel it is. Watch this commercial below and see if you don’t agree.

Hopefully, other employers will start to realize there is continued value in having older workers stay or even more value in hiring older workers that bring a wealth of experience to their organization.

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Is now the time for HR to take the bull by the horns and step up to AI?

I listened to another AI type of webinar today, also from the MIT Sloan Management group. The speaker was Mary Lacity Walton Professor of Information Systems and director of the Blockchain Center of Excellence at the University of Arkansas. She was talking about Planning for the Human-Digital Workforce. During the presentation, she said that there were many areas of the HR field that could make use of, what she called, Cognitive Automation. What she was talking about is very similar to what others refer to as AI. That brought to mind this post from earlier this year. 

I listened to a webinar the other entitled How Big Data and AI are Driving Business Innovation in 2018. Presented by Randy Bean, CEO, of New Vantage Partners, on behalf of MIT Sloan Management Review, the webinar was not HR related nor did it address HR in any manner, but I thought the information signals a major shift that HR should pay attention to.

Biggest investment in technology is in Artificial Intelligence

Based on a survey of Chief Data Officers, the survey shows that fear of disruption is fueling the investment in AI. This fear has increased significantly in just the past year. In 2017only 46.6% of CDO’s and CEO’s reported this fear, yet it is up to 79.4% in 2018. I cannot imagine this fear not being conveyed to the CHRO in C-Suite meetings.

Big investments

As a result of this fear, the survey revealed that 97% of executives report that their companies are making substantial investments in AI and big data initiatives. This means it is time for HR to take the initiative to make sure that HR is being included as part of that investment. The researchers have found that the biggest issues in the successful implementation of AI are people issues. These include resistance to change and a lack of understanding of statistics. Both of these are educational issues that are the bailiwick of HR, or at least should be.

Step up

The first thing needed is to learn and understand how AI is impacting not just HR, but also your company and industry. Go to the C-suite with a plan for how HR and the company can be improved by an AI initiative. Explain how HR can help overcome the people issues. Take advantage of the fear factor that is pervasive in the C-Suite and develop an initiative to utilize that technology. Team up with the CDO or CIO and take a step forward.


Is an obese employee protected by the ADA?

by Michael Haberman on October 11, 2018 · 0 comments

Obesity as a disability is a growing problem.

At some time or another most HR professionals have probably been faced with the question of whether or not an obese employee is covered by the ADA. The answer as often happens is “maybe”. Unfortunately, as our population gets heavier this may become more of a problem.

Morbid obesity

The EEOC provides some guidance by saying:

…not every physical characteristic constitutes an impairment that implicates potential ADA coverage. For example, normal deviations in height, weight, or strength are not impairments. Thus, it would generally not violate the ADA to exclude someone from a job who exceeds what an employer considers an acceptable weight. Morbid obesity, however (i.e., weight that is 100% or more over what is considered normal) is an impairment, and it will be considered a disability if the applicant or employee can show that it substantially limits a major life activity, substantially limited a major life activity in the past, or is regarded as substantially limiting.

As you can see there is a lot of “maybe” opportunities in that answer.

Recently a case in Washington drew attention to this question. Attorney Bennett Epstein, of Foley & Lardner LLP, provided an analysis of the case. The case was not an ADA case, rather it was a case involving the Washington State Law Against Discrimination that is being reviewed by the Ninth Circuit Court of Appeals. In this case, a railroad employee with a BMI (body mass index) of 41 applied for a position as an electrician. The Centers for Disease Control and Prevention (CDC) considers a BMI of 30 or more to be obese. The railroad was more liberal and considered a BMI of 40 or more to be obese. At either level, the employee failed the measure. He was referred to the medical examiner who offered to give him a “fitness for duty” test at the employee’s expense. He could not afford the test and thus was rejected for the position. As a result, he headed to his lawyer’s office.

Ninth Circuit advises the Washington Supreme Court

Since this is a case about a state law the Ninth Circuit had to refer the case to the Washington Supreme Court for a ruling. However, they did provide some guidance on how the EEOC might see the case. Mr. Epstein says that “In an amicus brief in the recent Ninth Circuit case, however, the EEOC argued that a person has a disability when weight is either outside the “normal range” (again, undefined) or occurs as a result of a physiological disorder.” He points out, however, that “The EEOC’s position is at odds with the holdings of most federal appellate courts, which have held that being ‘overweight’ alone does not constitute a disability under the ADA. The claimant also must establish that the excessive weight is a result of a physiological disorder.”

So what is an employer to do?

If you as an employer are faced with a grossly overweight applicant or employee you better off doing an individualized assessment of the employee’s ability to do the job. I know from personal experience that BMI is an imperfect measure. You can actually be fit and have a BMI over 30, so why eliminate a capable candidate? If someone is overweight due to a physiological disorder then that is another matter. Mr. Epstein does say that one thing the Federal court made clear is that you cannot charge the candidate for the fitness test. So be careful.


A New Form is required by the Fair Credit Reporting Act

by Michael Haberman October 10, 2018

Tweet If, as an employer, you have ever used, or ever plan to use a Credit Reporting Agency, also known as, a background screening company, then this is something you need to pay attention to. Background screens are credit reports Under the Fair Credit Reporting Act, a background check has the same restrictions as does […]

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From the Archive: In case you think recording employee time is not important, think again!

by Michael Haberman October 9, 2018

Tweet Recent news items about recording employee work time have prompted me to republish this post from earlier this year. Try not to make these time recording mistakes. In my consulting practice, I run across companies occasionally that are somewhat lackadaisical in keeping track of the time their employees are working. Often this comes from […]

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Future Friday: Breathing a sigh of relief?

by Michael Haberman October 5, 2018

Tweet Many early prognosticators in the past have predicted the demise of many jobs due to the increased use of artificial intelligence (AI.) However, as time has gone by and AI has become more of a reality in the workplace the predictions of widespread job losses have been tempered some. So what are they saying […]

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A guest post: What HR Strategies Promote Employee Safety?

by Michael Haberman October 4, 2018

Tweet Today’s post is the work of freelance writer Vincent West. The human resources department plays a vital role in ensuring that all things related to the organization are running smoothly. Even in industries that do not involve regular safety hazards and dangerous working conditions, the HR department must promote adequate conditions to keep employees […]

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Employer mandates that cost the public

by Michael Haberman October 3, 2018

Tweet On a recent trip to San Francisco, I opened up the menu at a restaurant and found the statement in the picture. Supposedly the “Employer Mandate” is the updated term for “Healthy San Francisco.” SF requires employers to provide health care coverage for their employees. Some have chosen to tack on a separate fee to cover this rather […]

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Take Me Out to the Ball Game…Are We Safe?

by Michael Haberman October 2, 2018

Tweet My favorite baseball team is headed to post-season play for the first time since 2013. My wife and I are partial season ticket holders. The reason we have these tickets is that the team built a new baseball park closer to our house and we wanted to be a part of that excitement. It […]

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