While the Congressional debate over health care reform focused on the public option, mandatory insurance, and other hot button issues, tucked away in the new law was a provision that imposes new requirements on many workplaces with new mothers. The Patient Protection and Affordable Care Act (HR 3590) provides mothers the right to express breast milk for a full year, during an unpaid “reasonable break” in a private place (i.e. away from the public and co-workers) that is not a bathroom. The modification, which was incorporated into the Fair Labor Standards Act,¹ applies to all employers who have more than 50 employees, but not to employers with less than 50 employees if the employer can demonstrate an “undue hardship.”² The law explains that factors to consider in the “undue hardship” analysis include the expense required to provide a private location given the size of the organization, its financial resources, and the structure of the business.  The federal law also clearly intends to set a “floor” for the essential protections, and does not preclude a state law with greater requirements.³

Here in Ohio, State Rep. Marian Harris has introduced House Bill 488, which would impose slightly higher obligations on Ohio employers than the new federal law. Harris’s bill would amend R.C. 4112.01 of Ohio’s Civil Rights Act, by expressly providing that discrimination “because of sex” and “on the basis of sex” includes lactation. The bill also proposes a new section, R.C. 4113.12, under which an employer would have to provide a reasonable unpaid break during which an employee could express milk, and to the extent possible would need to permit the employee to express milk during a scheduled paid break. Additionally, the area where the employee expresses milk would need to be “sanitary,” which, per the bill’s language, might include the employee’s work space. Unlike the federal bill that requires employers to provide this option for a year, the Ohio bill would permit employees to express for as long as the mother is lactating. Lactation can continue for a few years, as long as the child nurses or the mother expresses, so this would be a considerable difference from the federal law.

Under Harris’s bill, an employee who suffered from her employer’s violation of the statute could file a charge of discrimination with the Ohio Civil Rights Commission (OCRC). The charge would be processed the same as the OCRC processes charges of discrimination based on race, sex, religion, and other protected factors. The bill further provides that the Director of Development and the Ohio Civil Rights Commission would work to provide employers with information about how to “accommodate lactating mothers in the workplace.”

Ohio House Bill 488 may be in response to an employment case before the Ohio Supreme Court last year, involving the termination of an employee who had taken an unauthorized work break to express milk. The Court accepted the case of Allen v. Totes/Isotoner Corp.⁴  on the issue of “whether Ohio law prohibits an employer from discriminating against a female employee because of or on the basis of lactation.”⁵ However, the Court majority affirmed summary judgment on behalf of the employer on the grounds that plaintiff failed to produce evidence that the employer’s stated reason for terminating her – taking unauthorized breaks – was a pretext for discrimination,⁶ without addressing the issue that was accepted for review. The majority opinion prompted strident concurring and dissenting opinions, in which three justices argued the majority should have ruled that Ohio’s pregnancy discrimination laws prohibit discrimination based on lactation.

Nicole S. Moss, Associate Assistant Attorney General
Michael C. McPhillips, Section Chief

¹  29 U.S.C. § 207 (r).
²  Id. at (r)(3).
³  Id. at (r)(4).
⁴  123 Ohio St.3d 216, 2009-Ohio-4231.
⁵  Id. at ¶ 1.
⁶  Id. at ¶¶ 6-7.