SGCTA at Five Years: Jessica Lee

Jessica Lee is a Legal Fellow at the Center for WorkLife Law. Jessica discussed the Employment Action Areas of the Surgeon General's Call to Action to Support Breastfeeding during the August 23 virtual town hall meeting. Below is a transcript of her responses:

What accomplishments from the five years since the SGCTA are you most excited about? Did these efforts target or affect disproportionately impacted populations, i.e., those with the greatest disparities in breastfeeding rates? If so, how?

I think the first accomplishment is just that as you’re listing those [action] items, these are the very same items that are in the press, they’re in our politics. There’s really been, I think, a transformation in the public opinion and education about the right to express breast milk at work, the right to have paid parental leave and the supports that new parents, and I think particularly, breastfeeding mothers, need. I think just the fact that these topics are trending every single day is a major accomplishment that this movement played a massive part in.

Thinking more specifically about a few items, one of the very important accomplishments that I think folks will be hearing more about in the next few months is the expansion in who is covered in the “Break Time for Nursing Mothers” provisions. The Fair Labor Standards Act, the overtime law, was the tool that the Affordable Care Act and lactation accommodations were connected to. So, now that more people are going to have access to the Fair Labor Standards Act overtime provisions, and they’re going to have access to these lactation accommodations as well. That’s something that I think isn’t widely reported, and that’s something that’s very important from an equity standpoint.

Previously, folks who were hourly workers were automatically covered in those break time provisions, and people who were making about $23,000 a year or less, they were covered. Now, starting December 1, that income cap is going up to just over $47,000 a year, and that’s going to impact, I think, 6.4 million women. That, I think is a really massive accomplishment, and it disproportionately African-American and Latino workers. It also disproportionately benefits people in those states that have lower breastfeeding rates. That’s something really big to celebrate and look forward to in December.

The other big accomplishment—being a lawyer, I’m very excited that there’s a growing legal consensus that sex discrimination does include breastfeeding. That’s probably a no-brainer for many of us, but of course, we’ve also heard about these legal decisions that say “Sorry, men can lactate too, this is in no way related to sex, you can’t bring this case.” That’s just not going to be the case anymore. The Equal Employment Opportunity Commission has finally issued some really strong guidance on lactation, and this is the federal agency that administers and enforces civil rights laws against workplace discrimination. They are paying attention to this. And, I think, some of the old hurdles that we faced when it comes to actually enforcing our rights are not going to be there in the future. We’re still waiting for a lot of courts to weigh in on this, it’s still not solved, but I think there’s been a very big transformation there as well.

Considering the focus of the USBC and the field on advancing equity in breastfeeding support, what is missing from the SGCTA that you see as an important priority for the next five years?

I just want to back up and be very clear: the hourly workers are covered, also now salaried workers. Salaried workers making up to $47,000 a year will be covered. That’s a pretty high bar that will continue to shift. Every three years, it’s going to be reevaluated, so hopefully more salaried workers will be a part of that. But, it should be every worker. And that is one of the major gaps that is in The Surgeon General’s Call to Action to Support Breastfeeding.

Right now, it talks mostly about providing resources, educating, coming up with innovative or creative solutions to workplace problems. The movement has done a tremendous job on that; the government has done a great job on that. Resourcing workplaces just isn’t enough. I think there needs to be real teeth, real enforcement mechanisms. And, the law needs to include all workplaces, all workers. And, it needs to do it in a way that provides damages, provides an easier path for women to secure their rights so that you don’t have to go through a long, drawn-out legal fight. If there was a clear federal law providing coverage for everyone, I think that would set the tone to really change things.

The other big issue that you mention, of course, is parental leave. Currently, it calls for paid maternity leave in The Surgeon General’s Call to Action. That needs to be parental leave. We know that support of the non-breastfeeding parent is critical. It’s proven in research that if the other parent or partner is supported, that’s going to make a huge difference in the initiation and duration of breastfeeding. One of the best ways we can support the partner is to provide them with leave as well. And, staggered leave, it opens new opportunities. So, if mom is at work, the partner could bring the baby to her. There’s all sorts of scenarios that get me really excited when we have paid leave.

There needs to be federal leave policy. The current Surgeon General’s Call to Action supports states implementing parental leave, and that’s just not going to be enough. Again, that’s a major equity issue. Women on the coasts or in big cities are getting leave, but how long are women in the South or the Midwest or the smaller cities going to wait for this? Unfortunately, I think if we’re going to do it in this piecemeal approach, it’s going to be far too long. We cannot wait, and we need to have a federal parental leave program that provides people with an income while they’re on leave. That’s going to do a lot, not only for breastfeeding rates, but for family security, generally.

A couple other points, one, right now, The Surgeon General’s Call to Action doesn’t include students. I think it’s incredibly important when we’re thinking of employment to also think about those folks that are in the pipeline to employment. California just implemented a law requiring accommodations for students to be able to have a space to pump breastmilk at school. I think that is a tremendous step forward, but it needs to be every state. We’ve heard too many stories of women who are dropping out or not returning to school and not getting their education because they’re not getting the support that they need.

Looking at the whole (both existing action areas and any new ones suggested), which three implementation strategies do you think would have the greatest impact if prioritized over the next five years? How could these strategies best apply an equity approach?

Paid parental leave, it’s on the tip of everyone’s tongue right now, it’s everywhere we look. The movement to support paid sick days, paid parental leave is connecting us with workers across the country. It’s connecting us with community groups across the country. I think we really need to seize on that and to partner with the leaders of that movement. I’m thinking of labor unions, women’s groups. We really need to have solidarity with one another and recognize our shared interest.

I also think, although this has been happening it should happen more, we should bring in employers. There are a lot of employers who are doing the right thing, but sometimes they are bearing the cost of that or taking the risk. We need them to speak up as well and call for an across the board, federal, paid parental leave program and a federal mandate for all workers to have lactation accommodations at work.

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