Tucson Sued Over Breast Milk Accommodation

A paramedic with the Tucson Fire Department has filed suit claiming the department has wrongfully refused her requests to be assigned to a fire station that could accommodate her need to express breast milk. The case raises a little known provision of the Affordable Health Care Act that was enacted in 2010 that requires certain accommodations be provided for lactating mothers.

Carrie Clark filed suit in Pima County Superior Court on July 23, 2014 claiming city officials refused to accommodate her requests. According to the Arizona Daily Star, the city has one fire station, Station 12, which has a designated area available for women to pump breast milk. The room even has a refrigerator where expressed milk can be stored. Clark’s request to be assigned to Station 12 was reportedly “ignored”.

The Arizona Daily Star is also reporting that the city offered Clark the use of officers’ rooms, which are private office/bedrooms used by captains and chiefs. Clark declined to use those rooms claiming it would require her to interrupt – and at night awaken – those officers every two to three hours, necessitating them leaving the rooms.

The case is a bit of a wake-up call for fire departments that have not considered their responsibility under federal and state laws to accommodate employees who are nursing recently born children.

A little known provision in the Affordable Health Care Act (aka Obama-Care) amended the Fair Labor Standards Act (FLSA) to require an employer to provide reasonable break time each day for an employee following the birth of a child to express breast milk. The law went into effect on March 23, 2010.

The employer is not required to compensate an employee for the break but must provide a suitable location for the employee to express breast milk, and the law specifically states that a bathroom is not a suitable location. The accommodation for the nursing mother’s break time must extend at least one year following the child’s birth.

Here is a copy of the applicable FLSA provision, as incorporated into the US Code:

29 USC §207

(r) Reasonable break time for nursing mothers

(1) An employer shall provide—

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Besides the federal law, twenty-five states have laws protecting a woman’s right to breastfeed in the workplace. Arizona is not one of them. The National Conference of State Legislatures has a comprehensive web site explaining these laws and reviewing the rights of employers and employees under them.

Fire departments need to consider the impact of such laws on fire station design, organization of the workplace, and even staffing. For fire stations that already provide individual sleep quarters for each employee, the requirement to accommodate breastfeeding employees should have minimal impact design-wise. Stations that have dormitory style sleeping quarters or even semi-private rooms will need to find a suitable private location as the need arises.

While under the FLSA the break time afforded to a nursing mother is not necessarily compensable, if the employee remains on-duty and is available to provide emergency response if a run comes in, the time would be compensable.

One of the biggest questions that §207(r) raises has to do with staffing. As written, the law mandates that the employee be granted “reasonable break time” as unpaid leave. If the employee cannot respond to emergencies during this break time, staffing concerns are implicated. If a crew has five firefighters assigned but can respond with a minimum of four, the situation is easily accommodated.

However, not many fire departments these days staff even one additional person department-wide beyond the absolute minimum necessary. A fire company that is already minimally staffed may need either a relief member (at a cost to the department), or perhaps will have to go out of service while the employee is indisposed.

The Department of Labor has yet to issue regulations interpreting some of the thornier issues associated §207(r) but has offered some guidance. Here is the DOL’s web site, and here is the primary DOL guidance document: DOL Nursing Mother Guidance

More on the Clark v. City of Tucson lawsuit.

Here is the DOL Fact Sheet #73 on Nursing Mothers: whdfs73

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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