How Breastfeeding is Protected in Alberta

https://cbmg.ca/wp-content/uploads/2022/01/Protecting-Breastfeeding-in-Alberta-References-Dec-16-2021-Updated-from-2014-document-1-2.docx

Breastfeeding Protection in Alberta 2021

There are three categories of information listed which can help with protection of breastfeeding; International codes, Canadian federal legislation or guidelines, Alberta provincial legislation.  Plus other resources at the end of this article.

  1. The Universal Declaration of Human Rights https://www.un.org/en/about-us/universal-declaration-of-human-rights Article 7 prohibits discrimination and Article 25 (2) states “Motherhood and childhood are entitled to special care and assistance.”
  • International Covenant on Economic, Social and Cultural Rights;  Article 11~The right to adequate food.  [adequate = sufficient quality & quantity; safe, accessible, acceptable, sustainable] Article 12 ~The right to health. http://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
  •  International Code of Marketing of Breast-Milk Substitutes and subsequent WHA Resolutions (The Code) and the Baby-Friendly™ Hospital Initiative (BFHI).  The Code was endorsed by Canada at the World health Assembly 1981 to protect breastfeeding from inappropriate marketing practices. It is a voluntary code and has not been made into legislation in Canada.  The BFHI is also endorsed by the government of Canada and intends to protect breastfeeding at birth and beyond.  The Code and relevant WHA Resolutions and be found at   https://www.ibfan.org/international-code/   and BFHI at www.breastfeedingcanada.ca
  • Federal Labour Standards Legislation – In October 2006 a report on the Federal Labour Standards Review was released, and included key work-family recommendations. Section 7.59 says that employers should “provide for short breaks during working hours to afford nursing employees reasonable time off, without pay, to breastfeed a child and/or to express milk on the work site.”  These recommendations were not incorporated into the Federal Labour Standards Legislation.  In Alberta most employers fall under #8 below. 
  • Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) CEDAW, a UN human rights convention adopted in 1979, and since ratified by most countries (Canada, ratified in 1982; US signed in 1980 but didn’t ratify), specifies that to discriminate against women on the basis of their reproductive status (pregnant and lactating) is to discriminate against women. Since only women can be pregnant and breastfeed, to discriminate against a pregnant or breastfeeding woman is to discriminate on the basis of sex. http://www.un.org/womenwatch/daw/cedaw/ 
  • Canadian Charter of Rights and Freedoms   The Canadian Charter of Rights and Freedoms protects against discrimination on the basis of sex. Section 15(1) states:
    Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  https://laws-lois.justice.gc.ca/eng/const/page-12.html  (scroll down to Charter of Rights and Freedoms)
  • Canada’s Employment Insurance Act – January 1, 2001, Bill C-204  Maternity benefits were increased from a total of 25 weeks of maternal/parental leave to a full year based on a minimum of 600 hours of work   https://www.canada.ca/en/sr/srb.html?st=s&num=10&s5bm3ts21rch=x&st1rt=0&langs=eng&cdn=canada&q=maternity+benefits
  • Convention on the Rights of the Child (CRC) The Convention on the Rights of the Child adopted by the UN General Assembly in 1989, (ratified by Canada, signed by the US but not ratified) correspondingly recognizes the importance of breastfeeding as an essential component of children’s rights to optimal health and development. “Article 24(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standards of health
    (2) States Parties shall pursue full implementation of this right and in particular shall take appropriate measures: (d) to ensure appropriate pre-natal and post-natal health for mothers; (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation…” http://www.ohchr.org/en/professionalinterest/pages/crc.aspx
  • Alberta Human Rights and Citizenship Commission – Duty to Accommodate ( search breastfeeding)
https://albertahumanrights.ab.ca/Documents/Bull_DutytoAccom_web.pdf

“Gender, gender identity, and gender expression.

Q: After an employee told her employer that she was pregnant, the employer advised her that the company was restructuring and that she would be laid off. Can an employer lay off this employee? A: An employee cannot be arbitrarily fired or laid off simply because she is pregnant. If pregnancy is a factor in the decision to lay off or terminate an employee, the employer is in contravention of the Act. Discrimination on the basis of pregnancy is prohibited because gender, which includes pregnancy, is one of the protected grounds under the Act. Employees who are breastfeeding are also covered under this ground and are entitled to accommodation.

See also ** below.

  1. Nutrition for Healthy Term Infants Statement of the Joint Working Group: Canadian Paediatric Society, Dietitians of Canada and Health Canada.  Encourage exclusive breastfeeding for the first 6 months of life, as breast milk is the best food for optimal growth. Breastfeeding may continue for up to 2 years and beyond. http://www.hc-sc.gc.ca/fn-an/nutrition/infant-nourisson/recom/index-eng.php

Other useful information:

Information for Canada is also available from INFACT Canada at http://www.infactcanada.ca/Breastfeeding_Rights.htm

There is a Facebook page for help with harassment around breastfeeding.  Protect Alberta Breastfeeding https://www.facebook.com/groups/476835865660252 and this article from Birthing Magazine, on harassment https://www.birthingmagazine.net/breastfeeding/you-cant-do-that-here-what-to-do-if-you-are-harassed-for-breastfeeding-in-public/  

** From:  Rights and responsibilities related to PREGNANCY, CHILDBIRTH AND ADOPTION.  Alberta Human Rights Bulletin: September 2010, p. 3 This bulletin focussed on situations that occur in the workplace however, this bulletin has been taken down and as far as I can find, not replaced as yet.  FYI.’

 A copy included below of pertinent section which I accessed before it was taken down.

‘Pregnant women are protected from discrimination

The AHR Act protects people from discrimination on the basis of gender. This includes protection from discrimination because of:

pregnancy,

childbirth,

breastfeeding,

miscarriage or stillbirth,

abortion, and

complications arising from any of the above.

The AHR Act also protects people from discrimination based on other protected grounds: race, religious beliefs, colour, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status and sexual orientation. Pregnant women may experience discrimination based on more than one of the protected grounds because of stereotypes about pregnancy and race, disability, source of income or family status, for example. For more information on the protected grounds, see the Commission’s information sheet Protected Areas and Grounds under the Alberta Human Rights Act or contact the Commission.

The right to treatment without discrimination because of gender, including pregnancy and pregnancy‑related issues such as breastfeeding, applies in all of the areas protected by the AHR Act:

  • employment practices;
  • employment applications and advertisements;
  • residential or commercial tenancy;
  • goods, services, accommodation or facilities customarily available to the public (for example, restaurants, stores, hotels or provincial government services);
  • statements, publications, notices, signs, symbols, emblems or other representations that are published, issued or displayed before the public;
  • membership in trade unions, employers’ organizations or occupational associations; and
  • equal pay. (When employees of any sex—male, female or transgender—do the same or substantially similar work, they must be paid at the same rate.)
  • People who believe that they have experienced discrimination that falls under the AHR Act may inquire at the Commission about making a human rights complaint. Most of the pregnancy‑related complaints that are accepted by the Alberta Human Rights Commission fall under the area of employment practices or employment applications and advertisements.’

And an article on breastfeeding support in the workplace from Harvard Business Review.

https://hbr.org/2019/04/how-companies-can-support-breastfeeding-employees

As links sometimes are not available, here is the text from this article.  Harvard Business Review. How Companies Can Support Breastfeeding Employees  by Liz Morris, Cynthia Thomas Calvert and Jessica Lee.  April 2019

‘When paramedic Carrie Clark returned to her job after giving birth to her son in 2014, she contacted human resources to request a private space where she could pump breast milk. Clark was told that no accommodation could be made in the fire station where she was assigned, so she asked to be moved to another one. She even found a co-worker willing to trade. But Clark’s transfer requests were ignored.

Because she wasn’t getting the breastfeeding accommodations she needed to pump regularly, Clark experienced difficultly producing adequate milk for her son, a common side effect experienced by women facing breastfeeding discrimination. When Clark complained, she was ridiculed, singled out to perform drills, targeted for excessive inspections, and met with mocking comments from her male coworkers, according to a lawsuit she filed against her employer.

Clark’s experience is not uncommon. A 2016 University of Minnesota study found that 60% of women reported that they do not have access to adequate break time and space to pump breast milk. Across all industries breastfeeding employees struggle with a lack of accommodations, harassment, and worse. Breastfeeding discrimination is widespread, and too few employers are prepared to prevent or manage it.

Until recently, employer liability for breastfeeding discrimination was rare; but that’s changing fast. Although the overall number of lawsuits remains small compared to other types of employment claims, breastfeeding discrimination lawsuits have grown rapidly in recent years, by 800% in just a decade, according to our study from the Center for WorkLife Law at the University of California, Hastings Law.

In fact, a couple months ago, a jury awarded $1.5 million to a Kentucky Fried Chicken shift-worker in Delaware for the company’s failure to provide break time for pumping breast milk. And just recently, an Arizona jury awarded $3.8 million to Clark for refusing to accommodate her request and retaliating against her for complaining.

It’s important for companies to know what U.S. law requires of them — and the proactive steps they can take to ensure new parents have the time and space they need to pump.

First, the laws. In recognition of the needs of nursing parents and the myriad health benefits associated with breastfeeding, in 2010 Congress passed the Break Time for Nursing Mothers law. It requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” (Typically, employees “express” milk by using an electric breast pump.) Employers must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Without these basic break time and space accommodations, breastfeeding parents may be unable to produce adequate milk to meet their babies’ nutritional needs, and also run the risk of developing painful breast infections and illness or stopping breastfeeding earlier than their doctors recommend. The federal law gives a right to break time and space to most hourly employees, and many salaried ones too. Employers with fewer than 50 employees may be excused from compliance in rare situations where complying would cause a significant difficultly or expense. Large employers must always comply.

Another federal law, part of Title VII of the Civil Rights Act, is now being interpreted by federal judges to prohibit breastfeeding discrimination, including prohibiting sexual harassment and other negative treatment because of nursing and pumping. The Pregnancy Discrimination Act also includes a requirement that employers provide breastfeeding accommodations — like break time and space, modified uniforms, or temporary transfers — in many cases where the employer is already providing accommodations to employees for other reasons.

The laws in a majority of states impose additional requirements.

Unfortunately, this patchwork of legal requirements leaves companies without a clear standard of exactly what they must do to comply. But supporting breastfeeding employees by implementing the best practices outlined below can not only keep your company in line with the various federal and state laws. It can also help retain valued employees and save money. The strong business case for supporting breastfeeding includes lower absenteeism for breastfeeding parents, lower health care costs, higher loyalty, and positive public relations.

One of the biggest hurdles many companies face is a lack of awareness of the needs of breastfeeding employees and the basic steps that can be taken to support them. Here’s what you can do:

Speak up about supporting breastfeeding parents: Sending the message that senior leadership supports nursing parents goes a long way toward ensuring their needs are given the respect required by law and best practice. Peer support programs are another way to build a positive environment for breastfeeding parents.

Provide adequate space: Some employers worry that providing private pumping space means undergoing expensive construction or redesign. But that’s unnecessary. Providing adequate space can be as simple as giving permission to an employee who normally works in a cubicle to schedule regular appointments in an existing office or room that is infrequently occupied. And don’t forget clean supply closets, private changing rooms, or temporary tents or portable partitions when no other options are available. These may be adequate if they are sufficiently shielded from view and free from intrusion. However, because bathrooms are filled with germs, they’re unacceptable for preparing a baby’s milk.

Employees who want to pump at their workstations, whether for ease or efficiency, should be permitted to do so, unless it would create a truly significant problem for the business.

Provide basic amenities: Pumping spaces should always have a seat, a flat surface on which to place the pumping equipment, and access to an electrical outlet or extension cord to power the pump. Allow milk to be stored in the company refrigerator (the CDC says it is safe), or if none is available, inside a cooler kept in a secure location. Provide nearby access to running water for cleaning hands and pump parts. Additional amenities like reclining chairs, dim lighting, and company-provided hospital-grade breast pumps help nursing employees express milk more easily.

Provide reasonable break time: Most nursing parents need 2-3 breaks during an 8-hour workday, depending on their baby’s feeding schedule and their bodies’ needs. Expressing breast milk typically takes 15-20 minutes per session, but sometimes longer. Some additional time is needed to travel to and from the lactation space, set up the pump, disassemble and clean up, and store the milk, which is why providing amenities and a pumping location that allow those to be done efficiently is worthwhile.

Don’t reduce pay for pumping breaks: Whether lactation breaks must legally be paid depends on the state where the employee works, how the company treats breaks taken for other reasons, the employee’s overtime exempt/non-exempt status, and other factors. However, the best practice is not to reduce an employee’s compensation for time spent pumping milk. Reducing compensation may leave a company’s lower-compensated employees with no choice but to stop pumping altogether, creating a disparity amongst employees and depriving the company of the benefits of a supportive breastfeeding policy.

Provide other reasonable accommodations when needed: In some circumstances breastfeeding employees may need additional accommodations, such as if they travel for work, wear tight-fitted uniforms, or work around toxins. The key is to engage in an interactive dialogue with the employee to reach a workable solution that both meets the employee’s physical needs and can be provided without imposing an undue hardship on the business.

Allow direct breastfeeding when possible: Some nursing employees may want to directly breastfeed their babies, either for medical reasons or for bonding purposes. Although not possible in all circumstances due to workplace hazards or distance, in many situations direct breastfeeding can be reasonably accommodated and should be allowed, either by allowing the child on site or by allowing the employee to leave the worksite.

As one judge described the discrimination case filed by a mother who left her job after she was prohibited from breastfeeding her baby: “It is difficult to discern any meaningful difference between [the] employee pumping milk on the one hand, or breastfeeding a baby on the other, while on break in a room provided for the very purpose of privately expressing breast milk.”

Issue a written lactation policy with an accommodation request process: Having a written policy on the books ensures that managers, supervisors, and HR professionals respond to accommodation requests consistently, fairly, and in accordance with the law. This not only protects the company from legal liability; it also ensures that employees feel comfortable asking for what they need and can do so in a way that gives the company information necessary to respond appropriately. A written policy also conveys that the company takes breastfeeding support seriously. The U.S. Department of Women’s Health has a sample policy to get you started.

Educate decision-makers: Teaching supervisors, managers, and HR staff about the lactation policy and needs of breastfeeding employees is critical. Unless they were a recently-breastfeeding parent themselves, they’re unlikely to understand these needs without a little education.

In the same way companies train managerial staff to take seriously requests for accommodation associated with disability or family and medical leave, companies should prepare managers and supervisors to respond appropriately to lactation (and pregnancy) accommodation requests, including contacting HR when they’re unsure. HR professionals should be trained on the health and professional needs of breastfeeding employees and the value to the business in supporting and retaining them.

When paramedic Carrie Clark informed her HR manager that she needed to pump every 2-3 hours, he responded, “your pumping seems excessive to me.” When Clark explained that regular pumping was normal with a newborn baby, the HR manager replied, “Well, it seems to me that you’re not fit for duty.” These statements, of course, were used to persuade the judge and jury of discrimination. The needs of pumping parents are not complicated, but a lack of understanding can lead to very complicated, and expensive, problems.’

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