How far does HR have to go to accommodate a breastfeeding employee?

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Family status can throw up a whole number of complicated issues for HR professionals but a recent case in Ontario proves there are limits to how far employers legally have to go in terms of accommodation.

In Flatt v Canada, the Federal Court of Appeal addressed the issue of whether the decision to breastfeed is protected by human rights legislation – employee Laura Marie Flatt filed the grievance after she was unable to reach an agreement with her employer that would allow her to continue breastfeeding.

Flatt alleged that her employer, the Treasury Board of Canada, failed to accommodate her and was therefore discriminating on the basis of sex and family status.

Following her one-year maternity leave and subsequent four-month unpaid extension, spectrum management officer Flatt sought a teleworking arrangement which would allow her to telework two days a week – on the three days she would be in the office, Flatt proposed to take two 45 minute breaks to attend her child’s day-care in order to breastfeed. The breaks, Flatt requested, would be included in her paid hours rather than her lunch breaks.

While the TBC largely agreed with Flatt's proposal, the company raised concerns with her hours of work, noting that they were to total 37.5 hours per week excluding lunch breaks and the time associated with breastfeeding.

Flatt’s employer also contended the suggestion that the arrangement would last for one year. Rather than negotiate through the disagreement, Flatt proposed an entirely new arrangement and the TBC subsequently offered the following three options in order to accommodate her request:
  1. Work from home one day a week and work in the office four days a week, working a minimum of 7.5 hour a day when in the office.
  2. Work part-time.
  3. Continue on unpaid leave until her nursing is complete.
Unable to reach agreement, Flatt filed a grievance which was eventually dismissed by the Public Service Labour Relations and Employment Board and later the Federal Court of Appeals. Here’s why:

“The Board found that Flatt's evidence did not meet the second and third factors of the Johnstone test to establish a prima facie case of discrimination,” explains leading employment lawyer Ashley Savinov.

Before the FCA, the parties agreed that the issue should be decided in accordance with Canada (Attorney General) v Johnstone, 2014 FCA 110, which set out four requirements necessary to establish a prima facie case of discrimination on the basis of family status.

These factors are as follows:
  1. The child is under the care and supervision of the employee
  2. The childcare obligation engages the employee's legal responsibility for that child, as opposed to a personal choice.
  3. The employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and no such alternative solution is reasonably accessible.
  4. The workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
While there was no doubt that Flatt's child was under her care, meeting the first factor in the Johnstone test, she had not met the second and third factors, explains Savinov.

“In light of this decision and several decisions in recent years regarding a claim of discrimination on the grounds of family status, employers must be increasingly cognizant of their duty to accommodate employees to the point of undue hardship with respect to the requests of employees to schedule work around their legal childcare obligations which can include breastfeeding,” she advises.

“The FCA, while finding no discrimination on the facts of this case, certainly did not close the door to such findings in the future where the evidence established discrimination based on an employee's legal responsibility as compared to a personal choice.”

Savinov added that, in order to be successful with such a claim, an employee would need to prove that returning to the workplace was incompatible with breastfeeding.

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  • Lorraine on 2016-03-12 8:45:18 AM

    Flatt is really reaching and what she proposed is not necessary. My son was totally breast milk fed after I returned to work, HOWEVER, I expressed my milk several times a day, DURING MY COFFEE AND LUNCH BREAKS, and saved that milk to be fed to my son throughout the day. I walked to my sitter's on lunch and fed my son and walked back to work. It can be done, and you don't need to demand extra paid time to do it.

  • Laura on 2016-03-16 2:22:38 PM

    I am 28 weeks pregnant and an HR professional and although I plan to breastfeed as well, I don't believe that it was fair or reasonable for Flatt to expect that this be done during paid company time, period. Especially after the company had already granted her an additional 4 months LOA following her mat leave. I see no reason why she couldn't pump in the restroom or private area at work during her breaks, and refrigerate the milk for the following day for the daycare to provide to her child. Glad that the courts came to this decision and that this isn't setting a precedent.

  • Lorraine on 2016-03-17 8:01:14 AM

    I agree with your comment, Laura. When I did exactly what you suggest, was at a time when we didn't get a year off. It was 34 years ago and I had only 5 weeks off following the birth, so I had to come up with a solution if I wanted my son totally breast-milk fed, so I found a good sitter close to work. It CAN be done. No need to make MORE demands on the employer. Incidentally, my career was HR as well. :)

  • Emma on 2016-03-22 9:58:59 AM

    My child (currently 18 months) is still breastfed and when I returned after extended mat leave, I pumped twice a day. The employer is obligated to give you that time outside lunch and breaks and Laura, restroom is the last place one should be pumping or breastfeeding (IMO). Boardrooms and closed offices can be made available.
    My child refused bottles from the get-go so I can also understand wanting to directly breastfeed. In the above case, the employer was very accommodating and the employee should have made reciprocal efforts as well.

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