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Title VII Required Temporary Duty and Time to Express Breast Milk

Title VII Required Temporary Duty and Time to Express Breast Milk

Absences related to pregnancy apart from the Family and Medical Leave Act (FMLA) or other leave laws may be protected under Title VII of the Civil Right Act of 1964 from accrual of points or discipline under attendance policies, and pregnant employees may also have to be accommodated with temporary jobs if other employees are accommodated. Further, breastfeeding employees may have the right to breaks to express milk, according to the U.S. District Court for the District of Colorado.Four flight attendants sued Frontier Airlines Inc., alleging pregnancy discrimination under Title VII. The plaintiffs alleged discrimination based on the employer assigning points under an attendance policy for absences resulting from pregnancy or breastfeeding when the absence was not approved FMLA leave and for the employer denying temporary job reassignment for pregnant flight attendants who were unable to fly. The employer provided temporary reassignment accommodations for flight attendants with medical conditions unrelated to pregnancy or birth, including on-the-job injuries. The plaintiffs also alleged the employer failed to provide break time or a location besides the bathroom for employees who were expressing breast milk. The employer did provide break time for other physiological needs, such as restroom breaks. On the employer’s motion to dismiss the intentional discrimination claim, the court reasoned that the only point at issue was whether the employer had accommodated others who were similar in their ability or inability to work. The plaintiffs claimed the employer denied their request for ground assignments while providing the same accommodation for flight attendants who could not fly for a nonpregnancy-related medical condition or disability. Because the employer made this accommodation for flight attendants with job-related injuries or other types of disabilities besides pregnancy, the court ruled that the plaintiffs stated a claim for failure to accommodate. The plaintiffs’ Title VII disparate impact claim asserted that the employer’s policies or practices impacted pregnant or breastfeeding employees more harshly and that policies were not justified by business necessity. For an impact claim, the plaintiffs had to identify a specific policy or practice that resulted in a significant disparate impact on a protected group. The court found the plaintiffs met these requirements. The court held that the accrual of attendance points for absences that were pregnancy-related, despite the policy of not assigning points for excused absences under the FMLA and the impact on pregnant flight attendants compared to other flight attendants, based on the need for pregnancy-related medical care and breastfeeding, provided a basis for relief under Title VII. The plaintiffs alleged that all pregnant flight attendants were harmed by the failure to provide pregnancy-related accommodations, while no flight attendants who weren’t pregnant were harmed. Similarly, the plaintiffs alleged that virtually all breastfeeding flight attendants who required accommodations were harmed by the failure to provide adequate pumping accommodations, while no flight attendants who weren’t breastfeeding were impacted by this policy. The employer argued that none of the plaintiffs was still pregnant or breastfeeding at the time, so they couldn’t sue. The court held that the plaintiffs …

Viewpoint: When Employers Fail to Designate FMLA Leave

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Viewpoint: When Employers Fail to Designate FMLA Leave

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy workers’ compensation absence. For one reason or another, Johnny’s one-week leave of absence turns into one month, then six months.One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine months away as leave taken under the Family and Medical Leave Act (FMLA).What You Should Have DoneWhen an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and of Rights and Responsibilities under the FMLA (which is usually accompanied by a blank medical certification form). Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice. If you don’t send these notices to your employees, you risk an FMLA violation.But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center. In Jergens’ situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer’s decision to keep her on an administrative leave of absence while it investigated her alleged workplace misconduct. However, Jergens’ employer failed to provide her with a Notice of Eligibility. It didn’t send her a medical certification form and a designation notice, either.It literally sent her nothing.Jergens was terminated a short time later for reasons not related to her leave of absence. When she filed suit against his former employer, she claimed—among other things—that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.Employee Must Show Notice Failure Caused HarmThe court reviewing Jergens claim took a rather pragmatic approach. On one hand, the employer technically violated the FMLA when it failed to provide Jergens with proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.On the other hand, Jergens failed to provide any evidence that she actually was harmed by the employer’s failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.Case dismissed.Insights for EmployersThe employer dodged a bullet here. I share this case not to highlight employer best practices (clearly, the employer’s actions here are not a model for us to follow), but as a reminder that the way to go—indeed, the best practice—is to provide proper and timely FMLA notices:When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and of Rights and Responsibilities. When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.Let’s dig in a bit more though.Catching the Oversight Soon EnoughIf we have missed the deadlines …

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