By: Rhonda Armstrong – 6/12/14
As a follow up to the Mother’s Day post, I thought it would be a good time to review employer obligations when new mothers come back to work. The biggest challenges for employers relate to breastfeeding, requests for part-time/modified schedules, and absenteeism. I have outlined below what employers should consider in these common scenarios.
Before March 2010, employers had no duty to permit the use of breast pumps at work or to provide related break-time. However, that changed in 2010 when the Fair Labor Standards Act (FLSA) was amended to require employers to provide non-exempt employees (generally the hourly-paid workforce) with reasonable break time (up to 1 year after the child’s birth) and to provide private space (not a bathroom) that is free from intrusion. While some states have laws that protect employees company-wide, Michigan has not yet joined these ranks.
So, should Michigan employers be concerned about their salaried employees, given the exclusion under the FLSA? In EEOC v. Houston Funding II, Ltd., 717 F3d 425 (5th Cir. 2013), the Fifth Circuit recently ruled that firing an employee because she was lactating or wanted to use a breast pump at work was unlawful discrimination under both Title VII (prohibiting sex discrimination) and the Pregnancy Discrimination Act (PDA)(prohibiting discrimination on the basis of pregnancy, childbirth or related conditions). While the Fifth Circuit found disparate treatment, the Court noted the PDA does not create a duty to accommodate. For this proposition, the Fifth Circuit relied upon Wallace v Pyro Mining Co, 789 F Supp 867 (WD KN 1990), aff’d, 951 F2d 351 (6th Cir. 1991), which found an employer need not provide breastfeeding leave.
Based on the above authority, an employer should not discipline an employee simply because she brings a breast pump to work. It becomes a closer question for employers when an exempt employee (a supervisor for example) asks for special accommodations (e.g., extra break time, modification of certain spaces, etc.). While the law may not require an employer to provide such accommodations, employers must still be careful. If an employer has granted similar requests to others (e.g., permitting smokers to take intermittent breaks, or providing designated areas for smoking), this is the kind of disparate treatment evidence that will attract the attention of the EEOC or even plaintiff’s counsel and create difficulty for an employer under Title VII, the Michigan Civil Rights Act and the PDA.
Requests for Modified or Part-Time Schedules:
Here is an often played-out scenario: Upon return from leave, the new mother asks if she can work a modified or reduced schedule. What should you do? If the request is due to a medical condition of the child or the mother, the employer may have obligations under the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). Employers’ obligations will depend on the particular facts. If the employee exhausted her FMLA leave entitlement, she would have no right to an accommodation to care for her child. The ADA simply does not create a duty to accommodate an employee who seeks to care for a sick family member. If the employee still has some FMLA leave time remaining or if the modified or part-time schedule is needed for her own medical condition, then reduced time FMLA rights and the ADA both come into play.
If neither the FMLA nor ADA applies, employers are generally free to deny such requests to the extent their denial is not discriminatory. For example, while the employee claimed marital status discrimination, the Michigan Court of Appeals held an employer had no obligation to honor a married woman’s request to be home at night with her family and children. Noecker v. Dep’t of Corrections, 203 Mich App 43 (1993). Like the lactation accommodation cases, a disparate treatment analysis would take center stage.
Dealing with Absenteeism for Child-Related Reasons:
While some states have specific rights relative to education functions or child medical emergencies, Michigan does not. To the extent an employee’s absenteeism or request for time off does not implicate the FMLA or ADA, as in the situation where FMLA rights have been exhausted and the time off is sought to care for the child, an employer can generally enforce its attendance policies. Thus, employers may discipline employees who violate attendance policies so long as they apply their policies in a non-discriminatory manner. Once again, employers must be aware of disparate treatment. In other words, don’t excuse male employees gone during hunting season, yet deny similar time off requests by new mothers.
The law may not require an employer to let an employee attend a kindergarten graduation or work part-time if the employee’s infant has a heart condition, but denying such requests most often will send the wrong message to your workforce particularly if the employee’s request is legitimate and the employee does not have a history of abusing the attendance policy. On the other hand, some employees’ requests are onerous or indefinite, and employers may have to say “no.” Just make sure, when you do, you have crossed the “T’s” and dotted the “I’s” because parents with sick kids garner a great deal of sympathy, rightfully so, and juries will punish you.