Human Resource Blog

Company requires 4-day & night travel for nursing mother

I’m in HR and I think there should be an option here, but I don’t know what it is. My daughter-in-law had a C-section Nov. 18 (which constitutes day one of her maternity leave), and the baby is being treated for infant acid reflux because he cries uncontrollably a majority of the time. Doctor says after this last round of meds they are trying — if nothing changes — they will possibly need to do surgery.
My daughter-in-law’s last day of maternity leave is Feb 9, and the Colorado company she works for is requiring her to attend a 4-day (and night) (Feb 10, 11, 12, 14) sales conference in another state (Kentucky). Although my son will be available to get the baby from daycare after work and care for him, we’re wondering if there is any law that would protect her, as a nursing mother, from having to leave her baby for 4 days and nights. Our concern is separation issues for the baby — expecially one who is having physical problems and is so young.
If her maternity leave is 12 weeks, does that mean she should still be considered to be on maternity leave by Feb. 10 (started on Nov 18).

Since Colorado has no family leave law, your daughter-in-law is probably taking maternity leave under FMLA, the federal Family and Medical Leave Act. If her first day of FMLA was on Tuesday Nov. 18 then her 12 weeks would end on Monday Feb. 9. She would be expected to report to work on Tuesday Feb. 10. Even if you could get that delayed by one day to Wednesday Feb. 11, the employer could legitimately require that she attend the sales conference one day late, beginning on Feb. 11.

Colorado does have a nursing mothers act, but it does not prevent the mothers from being required to travel. It simply requires that employers make reasonable accommodations for nursing mothers to have a private place to pump milk during unpaid breaks during the work day. Presumably, your daughter-in-law would be able to do that in her hotel room at the sales conference. This is a new law, and it has not been tried extensively in court. It is possible, but unlikely, that if you hired an attorney, he would be able to convince the court that the mother must be allowed to bring the baby to the conference.

To look at it from the employers point of view for a moment, each sales employee is held to the same standards of performance, including attending sales conferences. There is no protection under the law for a young mother who has used all her FMLA and cannot do her job, or an important part of her job, due to her infants needs.

One option would be for your son and the baby to go along to the conference. It is likely that they would have to pay their own way, but the mother would be able to breastfeed the infant in the evenings.

Because it appears that the baby has a serious health condition, there is one other option that might work for you. FMLA can be used intermittently for baby bonding in the first year, but only if the employer agrees. And, few employers agree to this system. However, FMLA can also be used to care for a son or daughter under the age of 18 with a serious health condition. It is still limited to 12 weeks of FMLA total for all reasons, in a 12-month period.

The mother might return to work a week early (assuming that she has a doctors release to do so.) She will have used 11 weeks of FMLA. Then, if the infant has a serious health condition and a doctor is willing to certify that, the young mother could take her final week of unpaid FMLA leave from Feb. 9 to Feb. 15, to care for the infant. If surgery is necessary, and it is scheduled during this time, so much the better.

The employer cannot take negative action against an employee who takes FMLA leave, but just to be on the safe side, the mother should express extreme regret that she is required to miss the sales conference, and do whatever she needs to do, to cover the same material on her own.

The other option, of course, would be for the young mother to quit her job to care for the infant, and find another job when the child is better. Or, to leave the child with his father while she is on the sales conference. Since men can also take up to 12 weeks of FMLA for baby bonding during the childs first year, this might be a good chance for father and baby to get to know each other better.