Employer’s Duty to Accommodate Breastfeeding in the Workplace

The World Health Organization (WHO) and UNICEF have declared the first week of August every year as World Breastfeeding Week, a period to promote the enabling environments that help women breastfeed, including the workplace.

In 2021, as part of important health promotion initiative, Peninsula surveyed 48,973 employers across four countries: Australia, Canada, Ireland, and the UK. Canadian employers emerged as one of the most forward-thinking in their attitude towards breastfeeding in the workplace. However, there is still plenty of room for improvement. The survey from 2021 also reflected that just 21% of Canadian workplaces have a designated space in the office for staff to breastfeed. Also, while 91% of Canadian businesses considered themselves to be an inclusive workplace, only 26% said they were looking to further support breastfeeding employees.

Under human rights legislation, employers have an obligation to accommodate an employee’s needs related to family status. An employee’s breastfeeding care could be considered fundamental to their relationship with the child. Health Canada and the World Health Organization recommend breastfeeding newborns and babies for up to 2 years or more after introducing solid foods. This article intends to provide clarifications for employers on how best to manage accommodation requests from breastfeeding employees and, in turn, promote a respectful, welcoming, and supportive workplace.

How can I support the breastfeeding needs of my employees?

When an employee returns to work from maternity leave, employers should conduct a return-to-work meeting to ensure the employee is fit and ready to work. It is also an opportunity to find out if the employee will be requiring any accommodations. An employee may request accommodation to satisfy their breastfeeding care needs to their child.  

Human Rights legislation across Canadian jurisdictions recognize an employee’s right to request accommodations for their breastfeeding care needs on family care and sex discrimination grounds. In turn, the employer’s duty to accommodate requires that they alter an employee’s job responsibilities or provide the employee with supports in meeting essential job duties.

Whenever the accommodation process gets started, employees should provide information about their breastfeeding situation and the arrangements they need. Developing appropriate accommodations requires understanding what the employee can and cannot do, or what they need. The provision of accommodations is a cooperative process. For that reason, employees should be willing to participate in the discussions and consider the reasonable accommodations offered by the employer, even if the proposed arrangements are not the best or their preferred solution.

During this cooperative process, employers should train managers or supervisors on how to handle such sensitive conversations. It may be easy for managers to allow their biases, experiences, or expectation to interfere with better judgement. Managers and supervisors should also be trained on the appropriate questions to ask. The employee has a right to privacy and the employer’s right to seek information should strictly stick to what is relevant and necessary for the accommodation. 

Best practices for breastfeeding accommodation requests may include providing the employee with a private and clean space to breastfeed or express milk (not a washroom). Employers should also consider offering flexible work arrangements such as part-time work or longer/extra breaks throughout the day so the breastfeeding employee can nurse.

Employers should also contemplate other work arrangements to support breastfeeding staff such as a storage facility for expressed milk. Employers can offer a separate fridge area or set aside a hygienic space in a communal fridge such as a separate sealable container. 

At the same time, employers must ensure that breastfeeding employees are not subject to discrimination or harassment related to breastfeeding. Breastfeeding employees should not be penalized for taking breaks to nurse or express milk.

Employers should strive to reconcile family caregiving needs and work obligations. This will promote employees’ health and wellness, provide quality work-life balance, and increase overall employee engagement and morale.

What happens if I refuse to accommodate a breastfeeding employee?

Breastfeeding may fall under the family status or sex grounds of discrimination. Employers that fail to provide accommodations to employees who require a workspace and time off for breastfeeding care risk receiving a discrimination claim.

A discriminated employee may take legal action to a Human Rights Tribunal under a rationale similar to the approach taken for childcare obligations. To establish breastfeeding as a family status need, rather than a personal preference or choice, the complainant will foreseeably be required to prove:

·       The particular needs or a medical condition of the child requiring breastfeeding.

·       The need of the complainant to continue breastfeeding without expressing milk.

·       The reasons that the child may not receive the benefits of human milk while being bottle fed.

Employers will then be required to rebut these facts and show the tribunal that reasonable efforts had been made to meet the breastfeeding employee’s needs through alternative work arrangements.

Employers have a responsibility to ensure that their workplace is inclusive and free from family status discrimination. By taking proactive steps to prevent this discrimination, you can create a workplace that is respectful, welcoming, and supportive of all employees.

Do you need help implementing new workplace policies?

Peninsula Canada’s award-winning HR team can help you create effective policies that prioritize employee well-being. Our experts can help you develop company policies designed specifically to meet your business needs, such as health and safety guidelines, onboarding procedures, employee handbooks, contracts and documentation, and more.

Speak to our HR experts today and discover how we can help your business accommodate employees' needs and foster an inclusive, supportive workplace. Call 1 (833) 247-3652.