A recent amendment to the US Fair Labor Standard Act (FLSA) requires employers to provide reasonable break time and a suitable location for an employee to express breast milk for her nursing child. If Canadian employers did not know, there are similar provisions in Canada as well, under human rights legislation.
Across Canada, human rights legislation protects people from discrimination and harassment based on sex/gender; this protection includes pregnancy and breastfeeding. It is illegal to discriminate because a woman is pregnant. It is also illegal to discriminate because a woman was pregnant, had a baby or might become pregnant.
“Pregnancy” is understood to extend beyond the date of delivery and post-delivery recovery. The length of the extension depends on the circumstances of the mother.
Employees may have special needs because they want to become pregnant, they are pregnant or because they have just had a baby or a miscarriage. Employers are required to accommodate women who have special needs because of pregnancy. The only exception to this duty is if accommodation would create an undue hardship; meaning, if what needs to be done is simply too difficult or expensive, or if it creates serious health and safety hazards.
The Human Rights Commissions in Ontario and the Western and Atlantic provinces, as well as the Canadian Human Rights Commission, generally recognize a woman’s right to breastfeed a child in public areas, and have policies, guidelines or statements promoting women’s right to breastfeed a child in public areas, including restaurants, retail stores, shopping centres and theatres, etc. Women should not be prevented from nursing a child in a public area, nor be asked to move to another area that is more discreet. This right also extends to the workplace.
As stated by the Canadian Human Rights Tribunal in relation to breastfeeding:
“In their working lives, women face particular challenges and obstacles that men do not. A woman who opts to breastfeed her baby takes on a child-rearing responsibility which no man will ever truly face. In order for a working mother to bestow on her child the benefits that nursing can provide, she may require a degree of accommodation. Otherwise, she may end up facing a difficult choice that a man will never have to address. On the one hand, stop nursing your child in order to continue working and making a living for yourself and your family. On the other hand, abandon your job to ensure that your child will be breastfed.”
Moreover, women should not have to choose between their own health or the health of their baby, and their jobs. Accommodating nursing mothers could include:
- Allowing an employee’s partner or caregiver to bring the baby into the workplace for feeding
- Arranging a quiet and dignified place to breastfeed
- Providing breaks for pumping or breastfeeding as necessary
- Making scheduling changes to permit time to express milk or breastfeed at work or to reach home in time to breastfeed
- Providing an area to store breast milk at work
Where a breastfeeding employee needs to be accommodated, she is responsible for clearly informing the employer of her needs and of the accommodation required, preferably in writing.
It is the responsibility of the employer to create and provide a supportive environment. Generally, employers can create such an environment with minimum disruption. If an employer refuses a request for accommodation related to breastfeeding, the onus is on the employer to show the accommodation would cause an undue hardship.
Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor
Marie-Yosie Saint-Cyr, LL.B. Managing Editor
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