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Protections for Expecting and New Mothers in the Workplace

What can an employee who becomes pregnant expect from her employer? The Family and Medical Leave Act (FMLA) protects her job if she needs to take leave due to her pregnancy, the Pregnancy Discrimination Act (PDA) protects her from being discriminated against, and the Fair Labor Standards Act (FLSA) protects her ability to breastfeed at work.

The FMLA protects employees who need to take leave due to a serious medical condition. This means that upon returning to work, the employee who took FMLA leave must be allowed to return to the same or equivalent job as before. Pregnancy is included as a serious medical condition, and leave can be taken for both before and after the birth. This leave is unpaid, although an employer can require the employee to use up paid leave during this time such as vacation and sick days. Therefore, the FMLA protects pregnant individuals who decide to take time off from work both before birth and after the birth during the bonding period. The total time off cannot exceed 12 weeks, and the employee and employer must be covered by the provisions of the act.

The PDA prevents pregnant employees or potential employees from being discriminated against due to their pregnancy. However, this protection only requires similar treatment to other employees with temporary disability. So if an employer would help a temporarily disabled employee by providing accommodations such as modified duties and lighter task loads, then the employer must do the same for pregnant employees.

The FLSA, recently amended by the Affordable Care Act (aka "Health Care Reform" or "Obamacare") to include Section 207(r), requires employers to allow unpaid 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 to provide "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." This requirement applies to ALL employers except those who can articulate an undue hardship in complying. However this protection may not apply if the employee is an exempt employee since the FLSA wouldn't apply in general. Further, the requirements of Section 207(r) may not provide much protection to nonexempt employees anyways since the enforcement mechanism for Section 207(r) is apparently lacking. Federal law also provides that a woman may breastfeed "in a Federal building or on Federal property, if the woman and her child are otherwise authorized to be present at the location."

The majority of states do not have laws providing additional protections to employees for breastfeeding. In Oklahoma, breastfeeding is not considered a crime (i.e. indecent exposure), and mothers who are breastfeeding can be exempt from jury duty, but that's all the protection Oklahoma law currently provides for breastfeeding. 63 O.S. 1-234.1 (not a crime); 38 O.S. 28 (exempt from jury duty). The Oklahoma Legislature has shown it approves of accommodating breastfeeding mothers, but that law only provides that employers may accommodate breastfeeding mothers. Alas, this provision requires and penalizes nothing. 40 O.S. 435. The same provision also has an undue hardship exception, but this exception makes no sense to have included in the law since the provision is permissive. In any event, even though Oklahoma does not require employers to accommodate breastfeeding, employers must still follow federal law and accommodate breastfeeding in the workplace.

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