reasonable accommodation

Breastfeeding breaks under New York law

Is my employer required to provide me with breastfeeding breaks under New York law? Yes, if you are a nursing mother employed in New York, then your employer is required to provide you with Breastfeeding breaks under New York law. Specifically, Section 206(c) of the New York Labor Law states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so.  Furthermore, New York law prohibits discrimination against breastfeeding mothers who choose to express milk in the workplace. To see the full text of the law regarding breastfeeding breaks under New York law, please click here.  The full text sets forth detailed information about various aspects of Breastfeeding breaks under New York law, including the notice of the provisions of Labor Law 206(c) an employer is required to provide to a mother returning to work following the birth of a child, what constitutes reasonable, unpaid break time, what constitutes reasonable efforts to provide a private location to express milk, and suggested guidelines for an employer to implement for its nursing employees. Breastfeeding breaks are also now required under federal law.  As of March 23, 2010,  the Fair Labor Standards Act was amended to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.  Employers are also required to 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. 

Reasonable Accommodation Under the ADA

The Americans with Disabilities Act (ADA)  requires employers to engage in an interactive process with a disabled employee to determine whether the employer can provide a reasonable accommodation under the ADA to the disabled employee. A reasonable accommodation under the ADA requires that the employee be able to perform essential functions of a position.  Recently, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis to determine whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and has been employed by the City of New York, for ten years. McMillan’s agency has a flex-time policy, and approves tardiness under certain circumstances.  McMillan’s medication can make him sluggish, which resulted in his late arrival to work several times.  The tardiness is a function of the treatment for his condition.

Prior to 2008, McMillan’s tardiness was never a problem.  Then, in 2008, his supervisors refused to approve any more late arrivals.  McMillan requested a later start time, but was told that this was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present.  McMillan also stated that he would be willing to work through his lunch hour, but that suggestion also was rejected.

In 2009, McMillan was fined eight days’ pay for late arrivals and was ultimately suspended for 30 days without pay for his “long history of tardiness.”

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m., so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job.  On appeal, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

The Second Circuit pointed out the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away  is that a Reasonable Accommodation under the ADA may require an employer to allow for flexible working time for its employees, where such a reasonable accommodation would still enable that employee to perform the essential functions of his or her position.

Does an Employer Violate the ADA by Requiring Regular Attendance?

The U.S. Court of Appeals for the Ninth Circuit recently came out with a decision about whether attendance is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act. *The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case was a nurse in a neonatal intensive care unit at a hospital in Oregon.   The plaintiff suffered from fibromyalgia and missed a lot of work as a result.  After many years the hospital told her she would have to move to another department where her attendance wasn't as critical.  Plaintiff refused.  Eventually, she was fired for poor attendance.

Plaintiff sued the hospital under the ADA, claiming that she should have been allowed to stay in her position and "opt out" of the attendance policy.

The Court held that regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it.  However, regular attendance is not an essential function in every case.  Some jobs can be performed from home or on flexible schedules – examples include computer programming, blogging, etc.

In these circumstances, telecommuting would help the employee perform the essential functions of the job and most courts would say that the employer has to consider allowing telecommuting as a reasonable accommodation.

But many jobs cannot be performed from home.  These jobs include positions where the job requires face time, personal meetings or interaction, or where the employee must work with on-site items or equipment.

The Ninth Circuit held that the nurse’s job duties require her to work as part of a team, have face time with supervisors, other staff, patients and family.  In addition, the Ninth Circuit held that the nurse’s job involved sophisticated equipment that was only available at the hospital facility.

The take home point is that being able to show up to work is a major part of your job.  An employer has a duty to accommodate your disability, but not every accommodation is reasonable.  If you have any questions, or feel that you are being discriminated against on the basis of disability, please contact us.