FMLA and Breastfeeding.

In My Humble Opinion
1

So, the wife and I are thinking about having another child. Yay for us!

However, when we had our last child, my wife worked for a tiny startup that had fewer than 50 people, so they did not provide her a place to pump breast milk, and as a consequence she stopped expressing early, much to her dissastisfaction. She now works for a company with more than 50 people, so that provision does not apply anymore.

However, she is not so happy with her current job, and would like to quit and go work somewhere else (assuming interview, offer, blah blah blah). She knows that if she wants unpaid leave under FMLA, she needs to have worked for 1250 hours in the past year.

What’s she’s not sure about is whether she would still get break time for breast pumping if she hasn’t worked for a new employer for 1250 hours in the past year. Looking at that last link, it seems like the employer has to provide the time off and space to do so, whether you’ve worked there for a day or for a decade.

As far as we see it, she has three options:

[ol]
[li]Continue at the same company through pregnancy and breastfeeding. Definitely have full FMLA protection.[/li][li]Quit now, pray the new company is nice and allows unpaid time whether or not they have to. No FMLA protection for leave, not sure about breast pumping[/li][li]Continue working now, quit when she has the baby, start working again after she feels ready. No FMLA leave required, but would the new company still have to provide time and space for breast pumping (assuming they have 50 employees, etc)[/li][/ol]

Now, we recognize we may be getting ahead of ourselves vis a vis actually having the baby and my wife actually changing jobs. We’re not worried about health coverage, because she can switch to be covered under my health insurance if she needs to.

(Actually, I wonder what would happen if she took FMLA leave under option 2, and then quit after 12 weeks. I know medical coverage is guaranteed for that time but what if she quits after that? Would the company go after her for insurance premiums? I doubt it but I might as well ask.)

Anyway, I know someone else has a better handle on this than we do. (Paging Skammer). I also know you are not my lawyer, this is not legal advice, etc, etc. I put the thread in IMHO since it’s “legal advice”, but if it belonged in GQ I’m sure the mods will figure it out.

Of course, as long as it’s in IMHO, I’d appreciate non-legal advice, personal stories, amusing anecdotes, or whatever else you feel is appropriate (as if I could stop the Dope from comment when they feel like it!)

2

Using my one free bump. Anyone have any even slightly related experiences?

3

Well, I was going to wait for someone more qualified than me to answer the legal question first, but as far as I know, the pumping breaks are indeed guaranteed regardless of duration of employment. I didn’t know about the <50 employee exemption, though, so I may be wrong. I also know that breast pumps are now covered by insurance and can also be paid for from pre-tax flexible spending accounts. With insurance, though, your choices about the brand and type of pump may be limited. We just ended up paying for mine out of pocket; I think we investigated it and found that insurance wouldn’t cover the one I wanted.

Here’s my slightly related experience, from a couple of years ago:

We basically followed Option 2a: Work at the new company long enough to get FMLA leave. And that may well be what ends up happening to you, too. After all, even if your wife gets pregnant on her very first day on the job (best employee orientation session ever!), she’ll be just 12 weeks shy of a year with the company when she gives birth. And she only has to work about 25 hours a week to make up the 1250 required hours. So it’s not hard to time it right. In our case, we basically started trying nine months out from the one year mark, and it ended up taking a while, anyway, so in the end we were totally in the clear, by about 5 months.

My relatively short tenure did raise an issue, however, when I tried (prior to my leave) to request flex time when I returned. We didn’t want the kid to have to go directly from full-time mommy to full-time daycare, so I proposed several ideas: working a 30-hour week, working from home some days, working weekends instead of two weekdays, etc. But they weren’t willing to make any of these allowances for me, and in fact, refused to even discuss it until the end of my leave period, and I think it was largely due to the fact that I didn’t have a very long track record. My boss even said to me, “Look, you don’t even know that you’ll come back! You might just decide to stay home with the baby.” :rolleyes: If I had been there longer, they would have known me well enough to know that I would certainly be back, and would probably be giving them more than 40 hours of work one way or another, regardless of my actual schedule. Ultimately, they allowed me to work four 10-hour days, and that was helpful, but I was also a zombie for many months. So bear in mind that if your wife wants any kind of special allowances after she comes back, she may have more trouble negotiating that if she’s only been there the requisite year.

Another issue to consider is that while FMLA only guarantees unpaid leave, some companies do pay it as they would regular working hours, while others, like mine, “pay” it out of the employee’s other paid leave - sick leave and vacation time. Now, it was nice that I was able to keep a paycheck coming in for those 12 weeks. But since I had only been there a short time, I didn’t have enough combined leave to cover the full 12 weeks, so my paychecks were prorated. And the flip side is that I had to use all my sick leave and vacation time, in that order. So on my return, I had zero leave available. When I took my kid to his 3-month checkup, right after I came back to work, I actually had to get permission to go negative on sick leave. Again, I’m very glad I was able to get paid for that period, but having no leave at all with a young baby was… suboptimal. I realize my telling you this isn’t terribly helpful; I can’t imagine how your wife could ask about a company’s policy in this regard before getting hired, so it’s not like she can make a decision about which option to take based on this. But she can at least find out her current company’s policy, and be aware that a new company may do this, so you can be better prepared. And of course this applies to Option 3 as well - if she’s brand-new at a company, she may well need to use sick leave before she’s accrued it.

As for pumping on the job, though, I totally had it made. I have my own office, so I could just close the door whenever I needed to (although we have an open-door policy, so I had to explain to my supervisor that I wasn’t just being antisocial). And I got a hands-free pumping bra (Simple Wishes, I highly recommend it) so I could still work while pumping. Other women I know were less fortunate in finding a place to pump; some had to schedule a conference room, a few had to go to a bathroom (even though this is specifically stated as not being an appropriate location in the regulations), one, a teacher, had to go to the nurse’s office, and one ended up commandeering a supply closet. And while no one ever complained about the length of my pumping sessions, I’m sure that was partly due to the fact that I was working at the same time. I know women who did get shit for it. All of which is to say that just because a company is required to provide time and space for pumping doesn’t mean that they will necessarily make it easy to do. On the other hand, I also have a friend whose daycare is next door to her office, and rather than pumping, she just goes over to breastfeed a few times a day. So you never know.

4

I am going to have to pump on the road, since I will be traveling for client visits. That will be an interesting rest stop :wink:

I have to see where we are financially when I do have the baby and see if we can even afford for me to take FMLA. I see myself getting 2 weeks of unpaid leave then working from home the remainder of my recovery time for another 3 weeks or so.

5

I’m sorry I don’t have an answer to your question. I am responding to point out that feeding a baby pumped breast milk from a bottle is not breastfeeding, and it does not provides all the benefits of breastfeeding. It’s a second-best choice when breastfeeding is not an option. Instead of providing paid maternity leave, like practically every other country in the world, we’ve decided to pretend like allowing a woman to hook herself up to a machine during her work breaks is a adequate substitute.

6

Heart of Dorkness

Thanks for sharing!

My wife already has a pump she’s happy with, so I suppose we’ll stick with that one, but I’ll mention it to a friend that is working on her first one if she doesn’t know it already.

I hadn’t even considered that 1250 hours is only about 32 weeks at a 40 hour workweek - be interesting to see how that gets pointed out if she does change jobs.

We did know about the “forced leave”, which I agree is really crappy. I mean, nice to have a paycheck, really sucks if you need leave for ANYTHING in the next year. Which, with an infant in the house, is highly likely.

And yeah, my wife is not the best at standing up for herself, so I can see a boss giving her crap about taking breaks to pump - which she would not handle well :frowning: You would think managers would understand that pissing off your employees is bad for productivity but then that requires managers with an IQ over room temperature.

April_R :eek::eek: You are one dedicated mom! I think my wife would die of embarassment before pumping at a rest stop. Although, you do what you have to thought.

And I think she’s on the same page as you with the time off. I think she only took 6 weeks for our first because A - that’s when daycare would take him and B - she was going stir crazy in the house. Can’t say I blame her.

and to chula - yea, labor law in the US sucks in a lot of ways, but we’re trying to work with what we’ve got. What we should have could fill a few threads in Great Debates.

7

Tangential question - You do know this is not how it happens, right? Though the brain is often called the largest human sexual organ, not even Madame Mysterio can concieve through telekinesis.

Just sayin…

8

Given that we are having another child, yes, we are aware how the process works. Thanks for the snark and condescension anyway.:rolleyes:

9

It may depend on the state she is in. Some states require a place be provided.

10

Wow, I think this is the first time I’ve ever been paged in a thread! Sorry I didn’t see it sooner.

You’re correct about FMLA - if she changes jobs, she will not be eligible for protected leave until she has one year of service and has worked 1250 hours. Some states have their own laws which may give her protected leave sooner; for example I think in Massachusetts you get some protected benefit after only 3 months (but don’t quote me on that).

The provisions for working mothers are not part of FMLA, however. Actually, they were one of the first pieces of the Affordable Care Act (“Obamacare”) to go into effect. I’ll let the Department of Labor explain:

The page I linked to above links to Fact Sheet #73 which gives more detail, but here are the highlights:

  • The employer must provide reasonable (unpaid) breaks and a private location other than a bathroom to express milk.
  • The break requirement only applies to non-exempt employees
  • Employers with fewer than 50 workers may not have to provide breaks if it would be a hardship to the employer

State law may supercede these requirements if they provide more protection or benefit for the worker; for example paid breaks or breaks for exempt workers.

Congratulations on the new baby!

11

Oh wait, I meant to answer your other questions.

If your wife changes jobs and does not qualify for FMLA, many (most?) companies have some kind of leave policy for folks who are not eligible for FMLA. It’s something to ask the new employer before you accept their offer of employment (but after they make the offer!).

Usually if you go on unpaid leave, you’ll be required to continue to pay for your company provided health benefits at the same rate as an active employee. If you don’t, they can cancel your coverage or deduct it from your pay when you come back to work. If you don’t pay and then quit, they may or may not be able to go after you for the premiums; some of that depends on state law as well.

12

Wow Skammer, that was informative! Thanks for the info!

13

Nothing factual to add,

but wanted to point the seemingly obvious that more so than what is the relevant law of what the company HAS to provide, the attitude of the boss and workmates is going to be a much bigger determinant (at least in my mind) of what, where, why and if going back to work and pumping will be a success or not.

Whether mandated or not, a supportive company will work something out for pumping, and even if it is mandated, a non-supportive company is not going to make pumping an easy or pleasant experience.

14

:rolleyes:

15

Come on,little one, use your words!

16

In my first post where I refered to provisions “for working mothers” I meant, in case I wasn’t clear, “for nursing mothers.” Basically the employer has to accommodate new mothers with time and a place to pump regardless of her tenure with the company, except in very limited circumstances.

17

My apologies, no snark itended. I caught the “another”. It was merely a (failed) attempt at levity.

18

Forgiven. It’s hard to get tone over the internet.

19

The only thing that posts like yours are doing is convincing new mothers that exclusive breastmilk feeding is not really a viable option for anyone who works outside the home. If that is your goal, go for it. Sounds pretty lousy to me, though. :):):slight_smile:

God bless you and James Otto always!

colander

20

You’re having reading comprehension problems. By its nature, exclusive breastfeeding is not an option for women who work outside the home. Exclusive breastfeeding requires close, nearly constant physical proximity between the mother and baby. Instead of making not working outside the home a viable option for mothers, as it is throughout the world, in the United States we seem to have decided to redefine the word “breastfeeding” to mean “feeding with breastmilk” and pretend that breast pumps are a solution to low breastfeeding rates. The fact that you seem to be unable to distinguish the two shows how successful this campaign has been.