Sadly, there is no short answer to this question. In all likelihood, from
what I can see here, Colorado law would apply. Colorado has the better
workplace pumping law, in my view, but unfortunately it does not become
effective until August 6th (it is brand spanking new). Regardless neither
law addresses the question of the employer allowing a child to be in the
hotel room on mandatory travel. Remember both of these state laws address
PUMPING, not breastfeeding, so neither has anything to do with the presence
of a child. :( This case may be more of an issue of convincing the
employer not to be a schmuck (not a legal term of art) than of finding a
legal right.
I have pasted the two state workplace pumping laws below.
Yours,
Jake Marcus, J.D.
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The new Colorado law states:
SECTION 1.
Title 8, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW
ARTICLE to read:
ARTICLE 13.5
Workplace Accommodations for Nursing Mothers
Short title. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS THE "WORKPLACE
ACCOMMODATIONS FOR NURSING MOTHERS ACT".
(1) THE GENERAL 10 ASSEMBLY HEREBY FINDS, DETERMINES, AND DECLARES THAT:
a) THE AMERICAN ACADEMY OF PEDIATRICS RECOMMENDS BREASTFEEDING
EXCLUSIVELY FOR THE FIRST SIX MONTHS OF AN INFANT'S LIFE AND HAS
CONTINUOUSLY ENDORSED BREASTFEEDING FOR AT LEAST ONE YEAR OR LONGER AS THE
OPTIMAL FORM OF NUTRITION FOR INFANTS AND AS A FOUNDATION FOR GOOD FEEDING
PRACTICES;
b) EXTENSIVE RESEARCH INDICATES THAT THERE ARE DIVERSE AND COMPELLING
ADVANTAGES TO NURSING FOR INFANTS, MOTHERS, 18 FAMILIES, BUSINESSES, AND
SOCIETY, INCLUDING LESS ILLNESS AMONG CHILDREN WHO ARE NURSED AND LOWER
HEALTH CARE COSTS;
c) EPIDEMIOLOGIC RESEARCH SHOWS THAT BREASTFEEDING INFANTS PROVIDES
BENEFITS TO THEIR GENERAL HEALTH, GROWTH, AND DEVELOPMENT AND RESULTS IN
SIGNIFICANT DECREASES IN RISK FOR NUMEROUS ACUTE ILLNESSES;
d) BREASTFEEDING HAS BEEN SHOWN TO HAVE NUMEROUS HEALTH BENEFITS FOR
MOTHERS, INCLUDING AN EARLIER RETURN TO PREPREGNANT WEIGHT, DELAYED
RESUMPTION OF OVULATION WITH INCREASED CHILD SPACING, IMPROVED BONE
REMINERALIZATION POSTPARTUM WITH REDUCTION IN HIP FRACTURES IN THE
POSTMENOPAUSAL PERIOD, AND REDUCED RISK OF OVARIAN CANCER AND 5
PREMENOPAUSAL BREAST CANCER;
e) IN ADDITION TO INDIVIDUAL HEALTH BENEFITS, PROVIDING OPPORTUNITIES
FOR BREASTFEEDING RESULTS IN SUBSTANTIAL BENEFITS TO EMPLOYERS, INCLUDING
REDUCED HEALTH CARE COSTS, REDUCED EMPLOYEE ABSENTEEISM FOR CARE
ATTRIBUTABLE TO INFANT ILLNESS, IMPROVED EMPLOYEE PRODUCTIVITY, HIGHER
MORALE AND GREATER LOYALTY, IMPROVED ABILITY TO ATTRACT AND RETAIN VALUABLE
EMPLOYEES, AND A FAMILY-FRIENDLY IMAGE IN THE COMMUNITY;
f) NURSING IS A BASIC, NORMAL, AND IMPORTANT ACT OF NURTURING THAT
SHOULD BE ENCOURAGED IN THE INTERESTS OF MATERNAL AND INFANT HEALTH.
(2) THE GENERAL ASSEMBLY FURTHER DECLARES THAT THE PURPOSE OF THIS ARTICLE
IS FOR THE STATE OF COLORADO TO BECOME INVOLVED IN THE NATIONAL MOVEMENT TO
RECOGNIZE THE MEDICAL IMPORTANCE OF BREASTFEEDING, WITHIN THE SCOPE OF
COMPLETE PEDIATRIC CARE, AND TO ENCOURAGE REMOVAL OF BOUNDARIES PLACED ON
NURSING MOTHERS IN THE WORKPLACE.
Definitions. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1) "EMPLOYER" MEANS A PERSON ENGAGED IN BUSINESS WHO HAS ONE OR MORE
EMPLOYEES. "EMPLOYER" INCLUDES THE STATE AND ANY POLITICAL SUBDIVISION OF
THE STATE.
2) "REASONABLE EFFORTS" MEANS ANY EFFORT THAT WOULD NOT IMPOSE AN UNDUE
HARDSHIP ON THE OPERATION OF THE EMPLOYER'S BUSINESS.
3) (3) "UNDUE HARDSHIP" MEANS ANY ACTION THAT REQUIRES SIGNIFICANT
DIFFICULTY OR EXPENSE WHEN CONSIDERED IN RELATION TO FACTORS SUCH AS THE
SIZE OF THE BUSINESS, THE FINANCIAL RESOURCES OF THE BUSINESS, OR THE NATURE
AND STRUCTURE OF ITS OPERATION, INCLUDING CONSIDERATION OF THE SPECIAL
CIRCUMSTANCES OF PUBLIC SAFETY.
Right of nursing mothers to express breast milk in workplace - private
location - discrimination prohibited.
1) AN EMPLOYER SHALL PROVIDE REASONABLE UNPAID BREAK TIME OR PERMIT AN
EMPLOYEE TO USE PAID BREAK TIME, MEAL TIME, OR BOTH, EACH DAY TO ALLOW THE
EMPLOYEE TO EXPRESS BREAST MILK FOR HER NURSING CHILD FOR UP TO TWO YEARS
AFTER THE CHILD'S BIRTH.
2) THE EMPLOYER SHALL MAKE REASONABLE EFFORTS TO PROVIDE A ROOM OR
OTHER LOCATION IN CLOSE PROXIMITY TO THE WORK AREA, OTHER THAN A TOILET
STALL, WHERE AN EMPLOYEE CAN EXPRESS BREAST MILK IN PRIVACY.
3) AN EMPLOYER THAT MAKES REASONABLE EFFORTS TO ACCOMMODATE AN EMPLOYEE
WHO CHOOSES TO EXPRESS BREAST MILK IN THE WORKPLACE SHALL BE DEEMED TO BE IN
COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION.
4) THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL PROVIDE, ON ITS WEB
SITE, INFORMATION AND LINKS TO OTHER WEB SITES WHERE EMPLOYERS CAN ACCESS
INFORMATION REGARDING METHODS TO ACCOMMODATE NURSING MOTHERS IN THE
WORKPLACE. THE DEPARTMENT SHALL CONSULT WITH APPROPRIATE ORGANIZATIONS OR
ASSOCIATIONS TO DETERMINE THE APPROPRIATE INFORMATION AND WEB SITE LINKS TO
PROVIDE ON THE DEPARTMENT'S WEB SITE SO AS TO PROVIDE EMPLOYERS WITH THE
MOST ACCURATE AND USEFUL INFORMATION AVAILABLE.
5) BEFORE AN EMPLOYEE MAY SEEK LITIGATION FOR A VIOLATION OF THIS
SECTION, THERE SHALL BE NONBINDING MEDIATION BETWEEN THE EMPLOYER AND THE
EMPLOYEE.
SECTION 2.
Effective date.
This act shall take effect at 12:01 a.m. on the day following the expiration
of the ninety-day period after final adjournment of the general assembly
that is allowed for submitting a referendum petition pursuant to article V,
section 1 (3) of the state constitution, (August 6, 2008, if adjournment
sine die is on May 7, 2008); except that, if a referendum petition is filed
against this act or an item, section, or part of this act within such
period, then the act, item, section, or part, if approved by the people,
shall take effect on the date of the official declaration of the vote
thereon by proclamation of the governor.
New York law states:
S 206-C. RIGHT OF NURSING MOTHERS TO EXPRESS BREAST MILK. AN EMPLOYER SHALL
PROVIDE REASONABLE UNPAID BREAK TIME OR PERMIT AN EMPLOYEE TO USE PAID BREAK
TIME OR MEAL TIME EACH DAY TO ALLOW AN EMPLOYEE TO EXPRESS BREAST MILK
FOR HER NURSING CHILD FOR UP TO THREE YEARS FOLLOWING CHILD BIRTH. THE
EMPLOYER SHALL MAKE REASONABLE EFFORTS TO PROVIDE A ROOM OR OTHER
LOCATION, IN CLOSE PROXIMITY TO THE WORK AREA, WHERE AN EMPLOYEE CAN
EXPRESS MILK IN PRIVACY. NO EMPLOYER SHALL DISCRIMINATE IN ANY WAY AGAINST
AN EMPLOYEE WHO CHOOSES TO EXPRESS BREAST MILK IN THE WORK PLACE.
S 2. This act shall take effect immediately.
> Date: Thu, 19 Jun 2008 11:50:07 -0400
> From: Naomi Bar-Yam <[log in to unmask]>
> Subject: Workplace rights - URGENT!!
>
> Hello everyone,
> I received this note from an LC friend who is not on lactnet, but =20
> would like to share in your wisdom on this problem. We have her and =20
> mom's permission to post.
>
> Please send your responses and wisdom to Marry Tagge =
> ([log in to unmask]
> ) as well as to the list, since I'm sure others will be interested as =20=
>
> well.
>
> Thanks,
>
> Naomi
>
>
>
> Today I received a distress call from a mom required by her job to travel
> to New York for 2 weeks, and she was told if she didnt go she would be
> fired. She had arranged to have a family member come to care for the
> baby and stay in her room, and was told by her employer she would have to
> pay for her own room. I suggested she try to find out what the corporate
> policy is on someone other than the employee in the hotel room, and what
> the corporate policy is on family leave, such as for medical needs. Her
> boss took time off to care for an ill child, yet this mom is penalized for
> attempting to take time to pump for her child on her breaks. (The child
> is 10 months old, which is still a very fragile age to be separated from
> mom for 2 weeks). The mom has already been written up and put on
> probation for a prior business trip
> where she took a childcare provider with her, mom attended every session,
> performed at very high levels, and the situation was brought up somehow
> after the fact.
>
> I need your help! What can you offer for this mom, particularly regarding
> laws in New York? She lives here in CO, but her company is based out of
> NY, and she will be in NY. Her trip is scheduled for late July. She
> requested contact persons/information about her legal rights, and hope
> you can help her. I referred her to the USBC website, the WIC
> breastfeeding Coordinator here in Denver at the state health dept., the
> chair of our state brf coalition, two persons working on the milkbank
> startup in New England, and a member of HMBANA who has been a rep to the
> USBC for many years.
> ------------------------------------------
> Naomi Bar-Yam Ph.D.
> Executive Director
> Mothers' Milk Bank of New England
>
> [log in to unmask]
> 617-964-6676
> www.milkbankne.org
> ------------------------------------------
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