Employer's guide to lactation breaks in the workplace

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On 17 March, Legco passed the Sex Discrimination (Amendment) Bill that will strengthen protection against unlawful breastfeeding discrimination and harassment. It will be unlawful for a person to harass a breastfeeding woman from June. In light of this, Mayer Brown shares with Human Resources Online some of the most common questions employers have been asking of the legal profession:

Do I need to provide lactation break(s) to a breastfeeding employee?

Employers are under no statutory obligation to provide lactation breaks to employees, but should carefully consider any request by an employee for them.

Even when there is no direct discrimination, the employer should also consider if there is any indirect discrimination. This occurs where an employer applies the same condition or requirement to everyone equally but a smaller proportion of women who are breastfeeding can comply than those who are not. The employees who are breastfeeding suffer a detriment as a result and the condition or requirement is unjustifiable.

In determining the justification of a requirement, the court would consider the effect on the breastfeeding employee, the effect on the employer's operation (e.g., the resources of the business and administrative efficiency) and the reasonableness of alternative arrangements that could be provided to a breastfeeding employee.

An employer who does not already have a policy should consider any request for lactation breaks and not dismiss them out of hand. They should consider if there are ways of accommodating the request.

How many lactation break(s) should I allow a breastfeeding employee to take and how long should each break be?

Again, the Sex Discrimination Ordinance (SDO) is silent on this. It will be for the employer and the breastfeeding employee to agree on an arrangement. The Employer’s Guide to Establishing Breastfeeding Friendly Workplace published by the Department of Health recommends that employers should allow two 30-minute lactation breaks (or one hour in total) for an eight-hour working day for breastfeeding employees to express milk within one year after delivery.

Do I need to provide appropriate facilities in the office to allow breastfeeding employees to breastfeed or express milk at work?
An employer is under no statutory obligation to provide specific facilities to breastfeeding employees to express milk. However, it is unlawful for an employer to discriminate against a breastfeeding employee in the way it affords her access to facilities and services. For example, if a breastfeeding employee has requested to express milk in an unused room which other employees can use for meal breaks, then not allowing a breastfeeding employee to express milk in the room may amount to direct breastfeeding discrimination.

Employers should consider what facilities are available, or can be adapted to enable breastfeeding employees to express milk, such as a dedicated room or an existing multi-purpose room. Another way is to set up a screen in a secluded corner of a room with the use of appropriate signage. Alternatively, employers can allow employees to return home to breastfeed their child or  visit community baby care facilities near the office.

Can I reduce the salary and/or bonus of breastfeeding employees who are permitted to take lactation breaks during working hours?
It depends. If the breastfeeding employee has worked to make up for the lactation breaks taken, then there should not be any reduction in salary. Whereas if the employee has worked less hours than what is required under the contract, then the employer may be able to reduce their salary accordingly. Employers should discuss and document the agreement with the employee before implementation.

If an employer operates a performance-related annual bonus that provides that employees must work eight hours a day to be eligible, then this condition or requirement of working eight hours a day is likely to adversely affect breastfeeding employees who are likely to take lactation breaks to express milk. This may amount to unlawful indirect breastfeeding discrimination unless the condition or requirement is justifiable. The Equal Opportunities Commission of Hong Kong (EOC) recommends to count lactation breaks.