Employer Wins Case Over Lactation Accommodations

The Chicago Board of Education recently defeated an employee’s lawsuit over lactation accommodations required under the Illinois Human Rights Act and the state’s Nursing Mothers in the Workplace Act, which are similar to the requirements in the federal Pregnant Workers Fairness Act (PWFA).

A speech-language pathologist sued the school system, alleging that it violated state law because the lactation room she was offered was too far from her work area. On Oct. 27, the Appellate Court of Illinois affirmed a lower court’s dismissal of the case because the employee never complained to supervisors about the lactation room being on a floor different from the one she worked on.

The court also ruled the school system did not have to permit her to telework as a lactation accommodation because that would eliminate essential functions of her job, such as providing in-person therapy and meeting with special education staff.

Background

The speech-language pathologist gave birth to a daughter in summer of 2020 and took maternity leave. When she returned to work, she was assigned to work at three schools, and she requested a private space for lactation at each school, which was granted. She requested permission to work remotely, and that request was denied, according to court documents.

A week and a half after her request for full-time telework was denied, the employee received an email instructing her to attend a pre-discipline meeting to discuss possible attendance abuse, absenteeism and insubordination. Shortly after, she requested a leave of absence, which was granted, according to court documents.

The employee sued, alleging denial of reasonable accommodations and employment opportunities, a forced leave of absence, harassment and retaliation.

Reasonable Lactation Breaks

Two recent federal laws enacted after the employee’s lawsuit address reasonable accommodations for pregnant and lactating workers.

Separate from the PWFA, the federal PUMP Act requires employers to provide employees with reasonable break time to express breast milk for a nursing child for one year after the child's birth.

The PWFA doesn’t specify an exact proximity for lactation rooms, but the PUMP Act’s regulations require the lactation room to be in reasonable proximity to the employee’s usual work area, said Ruth Vafek, an attorney with Berger Singerman in Tallahassee, Fla.

“What that means in practice, of course, will depend on the circumstances,” she said. “If an area is offered and the worker objects to the distance, then under the PWFA, the employer will need to continue the interactive process to decide whether designating an area closer to the employee would create an undue hardship for the employer, keeping in mind the anticipated duration of the requested accommodation.”

Employers should take into consideration the amount of time it takes for a person to walk to the lactation room, said Cortlin Bond, an attorney with Bradley in Birmingham, Ala.

“Some states have laws specifying a required length of time for lactation breaks that increase if the lactation room is not close to the employee’s workspace,” she said.

Telework Request

Partial or full telework is one option that could arise from the interactive process, in which the employer and employee discuss the employee’s specific needs and consider an array of reasonable accommodations. The Illinois court ruled that telework accommodation would not be reasonable in this case.

Unlike the state law, the PWFA stipulates that an employer must provide reasonable accommodations to an employee if the employee’s inability to perform an essential job function is temporary, the worker could perform the essential function in the near future and the inability to perform the essential function can be reasonably accommodated, Vafek explained.

“This may be an adjustment for many employers and require a more careful consideration of whether to offer or agree to some version of telework as an accommodation, whether on an interim or ongoing basis,” she said.

“There is no bright-line rule as to when telework is considered a reasonable accommodation,” Bond said. Rather, employers should “identify what limitations the employee is facing and what reasonable accommodations could work to assist the employee perform the essential functions of [the] position. Employers are not required to provide the employee with the specific requested accommodation, if another reasonable accommodation is available.”

The interactive process for lactation accommodations can continue as circumstances shift.

“Employers should keep in mind that an employee’s lactation needs are likely to change over time, so they should continue to encourage open communication and be ready to adjust accommodations accordingly,” Vafek said. “Providing interim reasonable accommodations while the interactive process is ongoing is a best practice and can help protect [employers] from liability.”