As a pregnant or breastfeeding mother, you have rights at work. Unfortunately, not all employers will share in your joy about growing your family, so it is important to know when the law is on your side. Employment law attorney and Balanced Breastfeeding mama Lauren offers the following helpful summaries of the employment rights of pregnant and postpartum women.
Pregnant and postpartum women are protected by both state and federal laws. Most women are familiar with their federal rights, because these laws are more well known. But Delaware law provides broader protections to pregnant and breastfeeding mothers than does federal law, so if you live in the state of Delaware, familiarize yourself with these extra legal protections. Note also that because these laws are nuanced, and every case is unique, if you are concerned that your rights may have been violated, you should consider consulting with an attorney.
The Family and Medical Leave Act (FMLA)
Most women are aware that they may be entitled to maternity leave under the FMLA. The FMLA is a federal law, which only applies to employers with at least 50 employees working within a 75 mile radius of where the pregnant employee works. Women are only entitled to leave if they have worked for a covered employer for at least 12 months, and worked at least 1,250 hours in the preceding 12 months. That means that if you work for a small company, you are a new employee, or you work part-time, you probably aren’t legally eligible for FMLA.
If you do meet all of these criteria, you may take up to 12 weeks of leave following the birth or adoption of a child. The leave does not have to be taken immediately after the child’s birth or adoption, but that is when most women take the leave. Note that your husband or partner is also entitled to leave, if he or she is also the biological or adoptive parent of the child.
There are a couple of quirks to the FMLA, which favor employers, and which you should be prepared for. First, if you and your spouse or partner both work for the same employer and both wish to take FMLA leave, you are entitled to a cumulative 12 weeks—not 12 weeks each. Second, if you have accumulated paid leave, your employer may require that you take some or all of that leave, running concurrent with your FMLA leave. You are entitled to be paid for any days of FMLA that are also counted as paid leave under other employer policies, but you will not have access to additional leave upon your return to work, until you accumulate additional leave according to your employer’s policies.
Finally, many mothers returning to work want to return on a reduced schedule, to ease back into the flow of the office. The FMLA provides for something called intermittent leave, but it is not generally available to parents taking leave under the FMLA. Consequently, any reduced work schedule has to be negotiated separately with your employer, and is not a protected right.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII is a federal law that prohibits discrimination on the basis of sex and pregnancy, among other factors. It also prohibits retaliation against an employee who asserts rights under Title VII. Title VII applies to employers who have 15 or more employees. If you believe that you have been subjected to discrimination—including harassment, termination, demotion, or retaliation—as a result of pregnancy or another factor associated with your sex, you may have protection under this federal law.
The Fair Labor Standards Act (FLSA)
The FLSA is the federal law that governs minimum wage and maximum hours. However, due to an odd amendment through the Affordable Care Act (ACA, also known as Obamacare), it is also the law that entitles women to regular breaks during the work day to express milk. The statute governs all employers who engage in interstate commerce, regardless of the number of employees. Note that most employers are considered to engage in interstate commerce, even if they only do business in a single state.
Under the FLSA, women are entitled to breaks, for purposes of expressing milk, for the 12 months following the birth of a child. If you continue to breastfeed after 12 months, you are no longer legally entitled to breaks to pump, although your employer may agree to continue to provide the benefit. In addition to breaks, employers must generally provide a dedicated space for mothers to express milk. The room must have a locking door, and may not be a bathroom. (You don’t prepare your lunch in the bathroom and no one should expect you to prepare your baby’s meals there, either.) The room does not have to be exclusively dedicated to milk expression, but must be available when needed by the mother.
The FLSA does not specify a number of breaks or the length of breaks that a nursing mother may take. Instead, regulations encourage employers and employees to work together to determine what is reasonable based on the mother’s needs and the company’s business demands. It is important to note that “Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.” So, if folks are getting paid to go out and smoke, you have the right to get paid to pump.
You can look at the Break Time for Nursing Mothers under the FLSA fact sheet for more details about these legal protections.
The Delaware Discrimination in Employment Act (DDEA)
The DDEA is Delaware’s state analogue to Title VII, and governs Delaware employers with four or more employees. Like Title VII, the DDEA generally prohibits discrimination against employees on the basis of sex and pregnancy, as well as a host of other protected characteristics. However, the DDEA goes much further, ensuring that pregnant and postpartum women receive accommodations of known limitations related to pregnancy, childbirth, or a related condition, including, but not limited to, lactation. The law provides several possible accommodations, including time off to recover from childbirth or break time and appropriate facilities for expressing breastmilk.
What this means, in practice, is that employees protected by the DDEA are entitled to breaks to express breastmilk, and leave to recover from childbirth, even if they are not protected by the FMLA or the FLSA. In addition, Delaware employers are required to notify their employees of their rights under the DDEA, within 10 days of the employee’s disclosure of a pregnancy.
And, if you needed one more reason to be a proud Delawarean, effective December 2016, the DDEA was amended to protect employees from discrimination on the basis of family care responsibilities (for example, assumptions that working mothers will be unreliable because they have childcare obligations) and reproductive health decisions.
What a great time to have state and federal laws on your side!