Wednesday, November 29, 2023

Does it matter where you place an employee’s lactation space? (tl;dr: yes.)

An employee works as a speech-language pathologist in a large, metropolitan school district, traveling between two elementary schools and a high school. After giving birth, she requests a private space for lactation within each assigned school. The school district agrees, but the private space it provides to her in the high school was on a different floor than her work area.

Is this legal? Did this employer meet is legal obligations regarding the provision of a "private lactation space?"

There are two federal statutes in play here — the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act and the Pregnant Workers Fairness Act (PWFA) — which each answer this question differently.

Under the PUMP Act, employers must provide employees "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public … to express breast milk." There is no requirement under the PUMP Act that such a lactation space be located on the same floor as, or otherwise close in proximity to, the lactating employee's primary work area.

The PWFA, however, has something different to say on this issue. The PWFA requires employers to reasonably accommodate "pregnancy, childbirth, and related medical conditions." Lactation is a "related medical condition” that an employer must accommodate under the PWFA. Specifically, as to the location of a lactation space, the recently published regulations to the PWFA provide that a lactation space must be "in reasonable proximity to the employee's usual work area."

Thus, a lactation room that is on a different floor than an employee's regular work area might not violate the PUMP Act, but it likely violates the PWFA (and by association Title VII) … unless there is a bona fide reason a private space simply cannot be provided in reasonable proximity to the employee's usual work area.

Note: I borrowed these facts from Stachler v. Board of Education of the City of Chicago, which a state appellate court decided under Illinois law, not federal law, but reached the same conclusion.