Episode 209: Mothers Who Nurse For Others

There are a lot of protections regarding nursing mothers in the workplace. But what happens if you find out that your employee is not nursing for her own child, but rather someone else’s? Paul Edwards sits down with Senior Solution Center Advisor Tiana Starke to discuss what protections still apply, and how you can ensure you and your practice remain compliant when handling this unique situation.


Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems.

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want.

Tiana: Hi, Paul.

Paul: Hi, Tiana.

Tiana: How are you today?

Paul: I’m good. And I’m curious what today’s questions going to be on what the heck just happened. I’m going to stop doing that. What the hell just happened in H.R.? What’s going on? What’s the question today?

[Tiana laughs]

Tiana: It’s interesting. So. Okay, if you have a new mother at your workplace who needs to pump. I would say that’s nothing particularly new to us. It’s a pretty regular thing, but adding a different layer to it. What do you do if you find out that she’s actually pumping for somebody else’s child and twist, and we’ve had this from a member, what do you do if you find out they’re pumping and they’re actually using this as a side gig and they’re selling breast milk.

Paul: And selling breast milk.

Tiana: On the side?

Paul: Wow. Wow. This one is interesting.

Tiana: Mhmm.

Paul: I’m going to say this… I… Unless something has changed. I’m- I think I’m intimately familiar with the rules on nursing mothers in the workplace and breast pumping and all of that.

Tiana: Mm hmm.

Paul: And I don’t remember this scenario being addressed.

Tiana: It’s not.

Paul: It’s not?

Tiana: No.

Paul: Oh, okay.

Tiana: Yeah.

Paul: Yeah. So, you know, for everybody who’s listening, or our one listener…

Tiana: You know, the one.

Paul: The one. A lot of times laws are written well, sometimes laws are written well, sometimes laws are not written so well.

Tiana: Mm hmm.

Paul: We here in Arizona have a history of laws getting written not so well.

Tiana: Mm hmm.

Paul: Nonetheless, I just want to take a dig. At my local legislators. I got a whole story behind that.

Tiana: [Laughs] Where you can. [Laughs]

Paul: Yeah, where I can. Okay. Some laws are written well, some are not written so well. The law that covers this is written pretty well. And that what that means in some instances is broad enough to pretty much cover most circumstances. That doesn’t mean that it’s it. It contains every single scenario that could be played out.

Tiana: Right.

Paul: And I think the world is full of laws. The United States is full of regulations and employment laws. And that, I guess, we wish were more narrow so that we would know the exact answer to. And they’re not and they’re not ever going to be.

Tiana: Yeah. And really, the law in this case, it’s just clear that you need to give a nursing mother reasonable time to pump or express milk for up to one year after a child’s birth. You know, and so really, for me, encountering this situation as an advisor, I had to kind of back pedal for a second because first off, you know, you only have milk to it express if you had a baby…

Paul: Right.

Tiana: So that person is still covered under the law. They had a baby. They can still nurse for up to one year. There isn’t a caveat in there to say that the milk must go to the child.

Paul: The child that you just had.

Tiana: Yeah. Which is kind of hilarious to think about, too. Like how how would anybody check that? You know, like, show me the receipts. [laughs]

Paul: Well… no man put these laws together and they’d never, ever fathomed before them that. Yeah, they just didn’t. You know, this surrogate nursing has been going on for some time. Eternal. Right. Yeah. I mean, moms have been taking care of each other and other children of other moms for forever.

Tiana: Absolutely. Widely accepted in a lot of cultures.

Paul: You know, it’s, I think the most heartwarming TikTok or Reddit post for me is like, when they’re like, look who snuck in and they, like, you know, pull the cat off of the dog that’s nursing or yeah, I think I saw.

Tiana: Aww, I love those.

Paul: Baby weasel or something had snuck in and was just like, “this is fantastic”.

Tiana: Side note send me all the animal videos that you find!

Paul: Okay.

Tiana: I need the warm fuzzies. [laughs]

Paul: All right. So the law does not the law just simply states you must allow for this. So the next question that we get. So let’s give some practical HR guidance here.

Tiana: Sure.

Paul: I think that the one development that I’ve seen in my lifetime as an HR expert for the last 16 years was that they clarified that you had to give moms a place to pump or to breastfeed that wasn’t the bathroom, had some security or lock on it.

Tiana: Mm hmm.

Paul: And, you know, and then there was some practical guidance around that. And as far as providing a refrigerator.

Tiana: Yeah, additional state guidance and some of those that are more protective. Yeah. There needs to be a sink and water nearby, that kind of thing.

Paul: Hand-Washing, all that stuff. So that still applies.

Tiana: Right.

Paul: And then the other one was breaks. What if they need to take more breaks than, say, the normal break? And then it gets kind of tricky. Everybody, the federal government does not say you have to give breaks. All it does is address it once you do give breaks.

Tiana: But if you do…

Paul: That, if you do, you’ll have to give breaks. But if you do it in many states, not all several states, not even half have some rules about you have to give breaks and then they may have some additional rules about breaks for nursing mothers.

Tiana: Yeah. And, you know, so really what the breakdown is there is the Department of Labor says, you know, on a federal level, if you don’t have a more protective state law that applies, you don’t have to get breaks. But if you do, a reasonable break period is 20 minutes or less.

Paul: Yeah, and can’t make people clock out for that.

Tiana: Exactly. Yeah. To be a paid break before you have somebody clock out for that. So that’s usually the default. You want to keep in mind, if you’re in a state that isn’t more protective, if you allow somebody to take breaks, go to the bathroom, relieve themselves, you know, rule of thumb, not appropriate to have them clock out unless it’s longer that that period of time.

But California you know, as always, the added wrinkle, if anybody is out in that state where there are mandatory paid breaks that have to be provided that are a very specific length, you know, 10 minutes for every 4 hours of work performed. So basically with nursing mothers, the regulations there are that if you are giving other employees breaks that are paid, then a nursing break of the same length would also need to be paid for that nursing mother.

But the interesting stipulation there is that if you don’t provide individuals with regular breaks or if the nursing break exceeds what is normal for other employees, that’s when it’s okay to allow the nursing mother to clock out.

Paul: So if the nursing mom needs 40 minutes for whatever reason, you could you could have her clock out for the second half of a break, or if she needs more frequent breaks, you could have her clock out for the more frequent breaks.

Tiana: Absolutely, yeah. And maybe time one with the lunch break or but you have to figure out what’s happening with the other two. And, you know, a big question we get in the solution center, too, is just helping members plan for those nursing breaks. I think they encounter them and they’re like, oh my gosh, what am I going to do? Or How much is this going to actually take It never hurts to just have a conversation with the new mom whenever she comes back to ask, you know, what is your nursing schedule like right now? What do you see…

Paul: What do you plan?

Tiana: Frequency being? And that way we can block it off on the schedule. And, you know, I always want to throw out here to the regulations just say must provide reasonable breaks. They don’t define what reasonable is.

Paul: Yeah.

Tiana: You know, there’s no like time limit on that. So when in doubt if you can provide these breaks and a lot of times they’re not unreasonable. You know when we see these that’s very rare that somebody is asking for like, you know can I have 3 1 hour breaks throughout the day.

Paul: That would be not reasonable. You can make an argument for it. You document it and there are other things that you could that would be unreasonable that you could document if you if you if you had if you needed to. But for the most part, I’m telling you, don’t need to wait. This is something that we’re accommodating. You’re going to accommodate. We’re all here supporting families. I you know, primarily we work in dental and medical, which are run by women. It’s just I’m going to leave everybody with this. Tiana, it’s a really good idea to have a maternity leave policy before you go before an employee goes in to discuss it with them. There are some amazing components in that that make it go very, very smooth.

I am stunned at the number of people that we work with who either don’t follow the policy or don’t have a policy. I am not stunned by the amount of confusion and conflict that it creates when you don’t have something in place. And then that policy extends to coming back, and it should include what are your plans?

And, you know, this is a touchy subject because some people plan on on nursing and then it doesn’t work out for whatever reason. There’s just a lot to play here, and that comes into play here…

Tiana: It can be really delicate.

Paul: It can be it can be very, very delicate. So I think the more- the better your policies are, the more clear they are, the better the outcome you get because everybody understands the expectation. So if you do have to deviate from the expectation, it’s okay. You have a a basic platform to kind of work off of.

Tiana: That makes 100% sense to me, Paul. And I would say to tie it back to this topic, follow the rules and follow the precedent regardless of what that milk is being used for.

Paul: It’s a protected right now. Yeah. And I think it’s a wonderful thing myself.

Tiana: Yeah. Well, thank you so much, Paul, for unpacking this with me. I really appreciate it.

Paul: That was pretty cool.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Dec 20, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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