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Accommodating Nursing Mothers and Pregnant Employees

Last week, several newspapers ran stories about the Frontier Airlines flight attendants and pilots who filed charges of discrimination with the EEOC in which they complained that the airline had failed to provide accommodations to them so that they could pump breast milk.

Some of you are probably asking yourselves: Doesn’t the Fair Labor Standards Act require employers to provide a reasonable break time for a covered employee to express milk for her nursing child and a place other than a bathroom, that is free from intrusion from coworkers and the public? Yes, it does require this for employees who are not exempt. However, in addition to employees employed in a bona fide executive, administrative or professional capacity, airline employees – regardless of their position – are not covered by the FLSA, which is probably why the Frontier flight attendants filed the charges of discrimination with the EEOC.

Whether the Frontier employees have a viable pregnancy or sex discrimination is yet to be seen. Unlike the Americans with Disabilities Act, the Pregnancy Discrimination Act does not require employers to accommodate women affected by pregnancy or childbirth. It simply states that pregnant women or women who have given birth “shall be treated the same for all employment related purposes … as other persons not so affected but similar in their ability or inability to work.”

When dealing with requests for accommodations from pregnant employees or employees who have just given birth and who are not exempt from the FLSA’s overtime requirements employers should think about how they have accommodated male employees who are temporarily disabled. If Frontier Airlines allows temporarily disabled male employees to transfer to a light duty assignment or only be assigned to short flights, the airline should probably offer a similar accommodation to the pregnant employee or nursing mother. On the other hand, if the temporarily disabled male employee were only provided with unpaid medical leave, that may be all that Frontier Airlines has to provide its pregnant employees.

Don’t forget, however, even if you don’t have a duty to accommodate a pregnant employee or an employee who has just given birth, most non-airline employers are still required to provide a reasonable break time for covered employees to express milk as well as a private place for doing so. (The FLSA does not require employers to pay employees during this break, although most employers do.) Additionally, you should check state law because 28 states have laws related to breastfeeding in the workplace and some of those laws have additional requirements.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.