One part of the recently upheld Patient Protection and Affordable Care Act provides that employers must provide “a place, other than a bathroom, that is shielded from view and free from instruction from coworkers and the public” which may be used by an employee to express breast milk. The law also mandates that employers provide reasonable, unpaid breaks for their non-exempt employees to express breast milk for one year after the child’s birth.
In the first decision of its kind, a federal district court in Salz v. Casey’s Marketing Co. held that there is no private right of action by an employee for a direct violation of the law. The Act amended the Fair Labor Standards Act which only allows a private right of action to recover unpaid wages which are inapplicable to the Act.
Employers cannot break this law with impunity as the Department of Labor may seek injunctive relief for violations. Also, the court permitted the employee to proceed on her retaliation claim. The employee claimed she was constructively discharged following complaints to her boss about the lack of privacy in the space provided for her to express breast milk. The employee alleged the lack of privacy in the space caused her to be stressed which decreased her milk supply thereby threatening her ability to provide breast milk for her baby.
Employers now have another protected class of employees who can assert retaliation claims and should pay special attention to complaints by employees who are expressing breast milk in the workplace regarding the space provided or the breaks allowed. Further, employers should maintain an open line of communication with employees returning to work after childbirth in order to be proactive and responsive to employees who wish to utilize these breaks.
