One of our group members recently came back from maternity leave. We are all very happy for her and her family. The problem is that due to the fact that she is currently breastfeeding, she has to “go in the back to pump” 2-3 times per shift. While she is gone, the charts pile up, her residents have no direction, and throughput stops for her patients. We are double covered for most of the day and evening, but go down to one attending after 0200. We all work nights, so essentially when she works nights, there are no attendings up front for blocks of time. She is also paid about an hour of salary each shift to “pump”. It seems that everyone knows there is a problem, but no one wants to address it because we do not want to appear sexist or uncaring. Our director appears to turn a blind eye to this. Do you have any advice? What is the precedent?
All Pumped Out
This is an incredibly complex and emotional issue yet one that we all face. While I know a lot about HR issues, I don’t profess to be an expert, and certainly not a labor attorney, both of whom may be necessary to sort this out. Also, like your chairman, I admit to allowing pumping by nursing mothers to take place in departments I’ve worked in knowing that it will impact the department.
New mothers face many competing factors as they balance their desire to return to the workplace (for both professional and economic reasons), their desire to perform at a high level, our (ED docs and medical directors) desire to have them back on the schedule and ease the shift burden of their colleagues, and their desire to do what’s best for their baby, which according to the American Academy of Pediatrics, is exclusively feeding breast milk for the first six months of life. While some careers may lend themselves to expressing breast milk at work easier than if you’re an emergency physician, most woman in the workplace have rights protected by the federal government.
What the Law Says:
President Obama signed into law in 2010, the Patient Protection and Affordable Care Act which amended section 7 of the Fair Labor Standards Act (FLSA) of 1938 requiring employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk,” for nonexempt hourly workers, and also the stipulation that this be done in “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” The length of time that is considered reasonable is not specified nor is the number of times a day that is allowed. The law protects the nonexempt employee, who is your hourly worker, but doesn’t include exempt workers, such as physicians. However, the Department of Labor has encouraged employees to provide exempt workers the same protection. Additionally, a university or a hospital may have a policy in place that treats all employees (both exempt and nonexempt) as equals under this law. The law does say that you don’t need to pay (nonexempt) employees for the time spent expressing milk. Federal law is considered a minimum standard so if your state may have a more liberal law than what the federal government has written, you would be obligated to follow that one. As a caveat, this law is more complex than what I can go into here so be sure to check with your HR department to see exactly how your work environment is impacted by the law.
What’s best for the team:
From a management philosophy, I think you can’t go wrong when you put the patient first. I then put ED flow as my next priority and then come back to the people working in the ED. However, it sounds a bit ridiculous if you want to make the argument that women who want to express milk during their shift aren’t immediately available for the patient and therefore shouldn’t be allowed to either work or pump. We need to consider how we value our employees and the short term inconvenience of something versus the long term benefit of any employee, particularly a good one. Let’s consider a couple of other scenarios to gain some perspective. A physician breaks their leg skiing and needs to wheel around the ED for 4 weeks on a scooter rather than use crutches, which would really slow them down. This may slow them down but you wouldn’t have them not work because of it. Getting even more basic, let’s consider toilet and meal breaks. Suppose you were going through a colitis episode that required frequent bathroom breaks, you may not be available to immediately supervise a resident or even attend to a sick patient for several minutes but would you not work for the several weeks it takes to resolve? Finally, although we don’t all take meal breaks, it’s certainly reasonable to think that most docs want and need 10-15 minutes a day to eat and we usually don’t begrudge people who run to the cafeteria and then eat for a few minutes during the work day.
Like most problems that managers face, this needs to start with communication. You and your colleagues need to talk to your chairman so that he/she can recognize the impact this physician has on the department and the staff. The next step for your chairman is to discuss these concerns with the physician. This is not about being uncaring and sexist as much as it is about patient safety and quality, resident supervision, and ED flow. There are a variety of elements that need to be determined from this conversation including how long she thinks she’ll need to be expressing milk while at work as a 2 month strategy may be different than a 10 month strategy. Also, how long she needs to pump for and how many times a shift she needs to pump may decrease over the next couple of months, again impacting the solution. It may be in the best interest of the department and the patients to pull her off nights for a few months (she can make up her annual commitment when she is done expressing milk at work); However, there are a variety of other strategies that she can employ that may make her time outside of the department less problematic. Some simple reminders include: be as expeditious as possible, take breaks during non-peak times in the department, and consolidate breaks (i.e., take your meal break during a pumping break, etc.). Additionally, during double coverage, discussing with your co-attending if the timing is right to leave. Plan ahead. Conclude major issues with the residents before isolating yourself for a period of time. Once it’s determined with the other attending that the time is right, continue to inform the nursing team. It’s helpful to let the nurses know that you and the other attending agreed that the timing is right and you want to make sure they also feel like the department is in good shape. It may also be helpful to let them know that you will be back shortly (express your sense of urgency). Upon returning, jump right back in with a renewed sense of urgency. Finally, while the law talks about space requirements (my hospital has lactation rooms 6 floors away), find a space that meets the law but is close to the department, preferably with a phone and a computer so that if you’re immediately needed, you can return quickly.
In the end, I have never worked with a physician who needed to express milk at work who I wished had not returned to our group. They have always brought more to the table than the temporary inconvenience of being out of the department for the length
of two meal breaks instead of one. However, it takes communication and sometimes compromise on both parties sides to make it work for our priorities—the patient and the ED.
Michael Silverman, MD, is a member of Emergency Medicine Associates and is chairman of emergency medicine at the Virginia Hospital Center.