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Extended milk breaks
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Extended milk breaks
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have a Colorado employee who has been with us less than a year. Shortly after she was hired, she took a 12 week maternity leave. When she returned she was taking 15 minute breaks though out the day
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Forums » Topic Forums » Legal Forum » Extended milk breaks
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Extended milk breaks
posted at 7/29/1999 8:06 PM EDT
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Posts: 2
First: 7/29/1999 Last: 3/30/2000 |
We have a Colorado employee who has been with us less than a year. Shortly after she was hired, she took a 12 week maternity leave. When she returned she was taking 15 minute breaks though out the day to pump her breasts. Recently she has started to take up to 90 minutes to pump. She is not getting her work done - other people have to cover for her. We are starting to write her up for poor job performance. Can we terminate her? |
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Extended milk breaks
posted at 8/1/1999 7:20 PM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
Maybe. There may be some protection in your state's labor laws for pregnant, or post-partum, or nursing mothers.
Hopefully, you've documented the maternity leave as also qualifying for FMLA leave, and have sent this employee the FMLA notice, so the 12 weeks ran concurrently and was deducted from the federal entitlement. If not, these pump-breaks may qualify for intermittent leave. If so, and the employee is now out of time, without any state protection or federal protection, the employee may fall subject to your attendance/productivity rules. |
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Extended milk breaks
posted at 8/1/1999 7:29 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
As usual, start with the Employment at will doctrine-- absent an agreement to the contrary, employer can terminate employment for any reason or no reason, other than an illegal reason. Any applicable agreements here?
You need to consider a number of statutes-- Title VII, PDA (Pregnancy Discrimination Act), FMLA, ADA, and whatever causes of action are available under Colorado state law. Under Title VII, are you treating her the same as any other employee, regardless of her sex? Your position is yes; she would have the right to challenge that claim. ADA-- does she have a disability? Has she requested a reasonable accomodation? You haven't given any information to suggest that the answers are in the affirmative. The FMLA is apparently not an issue, as with you less than a year. On a practical level, has the performance issue been discussed with the employee? If so, I would be interested in her explanation. |
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Extended milk breaks
posted at 8/3/1999 1:36 AM EDT
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Posts: 434
First: 6/14/1999 Last: 4/25/2001 |
You might want to take ADA out of the Alphabet Soup. A recent decision (Martinez v NBC Inc) seems to eliminate breastfeeding/pumping as a disability under ADA. The court stated that normal conditions arising out of pregnancy are not disabilities under ADA in a case very similar to yours in which a female employee was allowed to express her milk three times a day for 20 minutes each. |
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