Pumping time and FML Hours
4429354
25 Posts
Does time spent pumping, outside of regular scheduled break times, count against an employee's FML entitlement?
4429354
25 Posts
Comments
[quote user="4429354"]Does time spent pumping, outside of regular scheduled break times, count against an employee's FML entitlement?[/quote]
I may be out of the loop on your terminology, but could you explain what you mean by "pumping time"?
Oh. There was a discussion (http://community.blr.com/hr/forums/thread/8476.aspx). There were people on that thread that can refer you to a state law that governs expressing milk. They were helpful to me.
I would not think expressing is an FML issue on the surface of it. It is not a medical issue; bonding issue; care of an ill child or any of the FML qualifiers. I would be as generous as I could with the person. Could be that the scheduled break times are not timely for what she has to do. Be flexible. . it will go a long way. [:)]
[quote user="californian"]what state are you in? Many states have their own laws re: pumping breastmilk and breastfeeding.[/quote]
Californian is right on -- there are a lot of states with special rules on this.
As a topic for debate, I bet I could make the case that pumping is in fact a form of child care. If they request it, I would grant it. If they didn't request it, I'd do some deeper research before designating it so, beginning with looking at state laws.
Nebraska - Does not have any specific laws.
We are certainly accomdating pumping requests, but I'm just wondering if the time spent, outside of regular breaks, can be counted towards their annual FML entitlement.
Nebraska - Does not have any specific laws.
We are certainly accomdating pumping requests, but I'm just wondering if the time spent, outside of regular breaks, can be counted towards their annual FML entitlement.
[/quote]
http://www.hrresource.com/blog/view.php?blog_id=229
I don't think it's been directly addressed but I do think there's room for a case out there under FMLA child care.
TX I read the link. It provided some insightful information. I am on record in a couple of different places as being on board for being as accommodating to this issue as possible. In fact I can't find a reason not to.
I know arguments can be made on any subject. The ability to articulate is half of winning a battle. But I have to say that articulating pumping time as a FMLA qualified child care issue will be quite a stretch. Is it a child care issue? Emphatically yes. Is it an FMLA child care issue? Can't see it under current regulations.
But there is something I would like. You are knowledgable as you have shown here in this forum muliple times. It would be interesting to see how you could make the connection. Could be food for thought later on. You game? [:)]
I know arguments can be made on any subject. The ability to articulate is half of winning a battle. But I have to say that articulating pumping time as a FMLA qualified child care issue will be quite a stretch. Is it a child care issue? Emphatically yes. Is it an FMLA child care issue? Can't see it under current regulations.
But there is something I would like. You are knowledgable as you have shown here in this forum muliple times. It would be interesting to see how you could make the connection. Could be food for thought later on. You game? [:)][/quote]
OK, here we go...
The first thing is that you don't need a neon sign over a regulation to fear the possible consequences. That is, you should fear being the test case of a moderately reasonably argument because juries, composed of people who have had jobs they don't like and bosses they don't like and HR departments that have messed up their benefits, do not generally need a neon sign to find in favor of the plaintiff. So, I have that going in my favor if I can show a moderately reasonable sounding argument, then you should fear that an uppity employee could make your company the test case for that argument in your circuit.
The second thing is that the regs are not the sole arbiter on this. Regulations are not actually primary/mandatory authority in the courts. They're secondary/persuasive authority, although the courts tend to give the regs and the regulating body substantial deference. So, once you go to court, you have common law, rules for interpretation, and circuit by circuit underlying dogma. Sadly, researching the specifics of case law, circuit by circuit, would be much too large a project for a forum posting.
Anyway, I think you know where I'm going with this: once you get sued, it goes to court, and then the regs don't necessarily mean what you think they mean AND a jury of the plaintiff's peers (not the company's peers) will make a decision on the matter. New mommies who aren't allowed to feed their babies are easy to empathize with. Wouldn't you agree?
Here are a couple knuckleballs that, upon being presented to counsel, may have counsel simply say, "What do you care? This is expensive and risky. Permit the pumping time."
Are you willing to bet the company's legal budget that a judge and jury will agree with you that "The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days" does not, in the context of that regulation, pertain to post-birth issues despite the fact that the opening part of the paragraph refers to complications after birth?
Of course, this assumes that the mother has a serious health condition after the birth event. OK. A serious health condition is one that COULD, absent treatment, result in more than 3 days of incapacity. Could failure to express milk lead to that sort of incapacity? I think it can and the MA intermediate court of appeals affirmed the trial court judge's ruling on a similar question although I think the ruling is based on civil rights and not FMLA because it's not in an employment setting. The case is Currier v. National Medical Examiner's Board. So, although you may win an argument on FMLA grounds, plaintiff's attorney may come at you from the civil rights direction instead, depending on what a more thorough investigation of pumping in the relvent circuit reveals about the law there.
"Infection" is one of the possibilities. "Milk fever" can kill you. Generally, it's staph or strep and both are bad and potentially lethal. Sounds serious. Probably should be avoided. The condition is "lactating" and the "treatment" is pumping in order to avoid a condition that could lead to an incapacity in excess of 3 days.
I am not an attorney and this is not legal advice but this is the kind of stuff I think about when I look at a situation like this.
[quote] . . .The second thing is that the regs are not the sole arbiter on this. Regulations are not actually primary/mandatory authority in the courts. They're secondary/persuasive authority, although the courts tend to give the regs and the regulating body substantial deference. So, once you go to court, you have common law, rules for interpretation, and circuit by circuit underlying dogma. Sadly, researching the specifics of case law, circuit by circuit, would be much too large a project for a forum posting.
New mommies who aren't allowed to feed their babies are easy to empathize with. Wouldn't you agree?[/quote]
Now that was an interesting exercise. I have to agree the FMLA issue may be won but that is not the only issue. Though you did make some interesting FMLA points. Food for thought. Me, I think that expressing should not be an issue anyway. It's a shame that it is at other places. Thanks for the 'game' I'm in checkmate. [Y]
The barn doors of FMLA are wide.
"Could, absent treatment, lead to more than 3 days of incapacity" and allowing prescription medications to be a "continuing regimen of treatment" allow so many things into the scope of FMLA coverage. Expressing, as we agree, should be permitted by any route, FMLA or otherwise. FMLA, with a little creative thought on those two points alone permits much and I wouldn't want my employer to be the test case on expressing. Talk about bad press. First, you are an employer going to court on a FMLA matter. Second, it's because you wouldn't let a new mommy pump for her new baby's best health interests and their mutual bonding. Great headline.
I'm not saying that either of these arguments would win, but I would bet that your liability insurance company would capitulate once a complaint is filed if the plaintiff were reasonable in the demand for damages and specific performance (e.g., reinstatement).
Recently got this from a legal update newsletter:
Got Milk? – A bill introduced in Congress on June 10 (H.R. 2819) would amend the FLSA, requiring employers of 50+ employees to [a] provide breast-feeding employees “reasonable break time” to express breast milk during the workday within one year of birth of the employee’s child; and [b] make reasonable efforts to provide a private space, other than a bathroom, in which to express milk. The bill offers employers a 50% tax credit of up to $10,000 per year, to promote and support these efforts. For full text of the bill, go to http://thomas.loc.gov and insert the bill number. This is another area where the states are way ahead of the Feds. Check out www.llli.org/Law/LawBills.html for links to summaries of breastfeeding laws in the U.S. and abroad. The website is sponsored by La Leche League International.
The Supreme Court of Ohio has upheld a lower court's decision to dismiss a lawsuit filed by an employee who was fired for taking unauthorized breaks to express breast milk for her infant.
The case involved a former employee who filed a discrimination lawsuit against totes/Isotoner, Inc. In her deposition, the woman admitted that over a two-week span, she took breaks from her workstation without her employer's permission. When firing the employee, her supervisor said that she was being terminated for failing to “follow directions.” A lower court had dismissed the lawsuit.
The Supreme Court of Ohio ruled that it was appropriate for the lower court to dismiss the lawsuit because the woman failed to produce evidence that the company had a discriminatory motive in firing her or that the company's articulated reason for firing her (that is, failure to follow directions) was merely pretext for discrimination based on her pregnancy or a condition related to her pregnancy. The woman had argued that that the break policy discriminates against lactating women, but the court rejected that argument saying she was able to take similar breaks to all other employees and that she produced no evidence that any other employee took long breaks without permission. Therefore, the court said, there was no record on which a jury could find in her favor.
Left unanswered by the court's judgment is whether alleged discrimination due to lactation is included within the scope of Ohio's law prohibiting discrimination based on sex and pregnancy. However, one of the judges did write an opinion explaining why she believes that the state law prohibits employment discrimination against lactating women. The opinion is significant because the trial court in the case had said lactation was a condition related to breastfeeding and not pregnancy--and that discrimination based on lactation is not the same as discrimination based on pregnancy. The Supreme Court justice found that conclusion "curious and inaccurate."