What does "Accommodating" Breastfeeding Employees Really Mean?
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One of your valued employees just announced that she is pregnant. Undoubtedly this will have an impact on your business. Among the other pregnancy related conversations you should have with your employee, you should also be discussing breastfeeding – specifically, that you are aware that, as an employer, you have an obligation (and are willing) to accommodate the employee’s choice to breastfeed. Many employers don’t know what ‘accommodating’ involves or even why they should be forced to accommodate an employee who wishes to continue to breastfeed upon return to work (thinking, can’t they just give their baby some formula?)
Let’s start with the basics. The Nova Scotia government (and most health organizations in the world) have recognized breastfeeding as the “normal, safest, and best way to feed infants”. Health Canada (and the WHO) recommends that babies be exclusively breastfed for the first six months of their lives. Breastfeeding is encouraged even after solid foods are introduced up to 2 years of age and beyond. Breastfeeding is free, available on demand and provides the child with all of its nutritional requirements. It passes the mother’s immunity on to the baby and promotes infant-mother bonding. In the mother, it reduces the risk of postpartum depression, osteoporosis, heart disease and even breast and ovarian cancer! It’s environmentally friendly too. There are benefits to employers as well. Breastfed babies are statistically healthier which means fewer missed days from work for employees to tend to their sick child. Employees who are able to continue breastfeeding report they feel more satisfied with work/life balance, resulting in increased job satisfaction and productivity.
Quite simply, it is illegal under s.5(1) of the NS Human Rights Act not to accommodate a mother who asks to be accommodated so she can continue to breastfeed her child. The NS Human Rights Commission has a Policy specifically on point. The duty to accommodate “is limited only if the accommodation would create an undue hardship.” That means you are legally obligated to accommodate these employees even if it causes you some economic hardship. If you do not accommodate, then the onus is on the employer to show why accommodating the request would cause your business undue hardship. A 2007 decision of the Canadian Human Rights Tribunal found in favor of an employee against Bell Canada when Bell would not accommodate the employee’s request to only work certain shifts so she could get home by a certain time to nurse. (Cole v. Bell Canada, 2007 CHRT 7)
Accommodation can be as simple as giving the employee shifts that allow her to get home in time to nurse. It could be providing a quiet, clean place with an electrical outlet for the employee to pump her milk and a fridge or freezer to store the pumped milk. It might be allowing the employee to have the baby brought into the workplace by a caregiver for feeding, and arranging a quiet place to nurse. The solution will be individual to the employee. Often accommodating the breastfeeding employee involves very little, if any, hardship on the employer but results in a dramatically happier (and productive!) employee. An excellent resource to make your workplace more Breastfeeding friendly is available through the NS Health Authority. Breastfeeding toolkit for employers. .
If you have general questions about your right as an employee or employer, you can call us at 902-826-3070 or contact us online. We offer a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.
By: Dianna M. Rievaj, MBA, LLB - Founding Lawyer
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