Amanda Hull
The federal omnibus spending bill passed by Congress and signed by President Biden in late December 2022 included breastfeeding protections for working parents.[1] These protections were initially introduced as the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act in 2021.[2] The PUMP Act expands existing hourly employee protections to salaried employees, requiring employers to provide appropriate “time and space for nursing employees to pump [breast]milk”.[3] The PUMP Act, while needed, is but the latest half-hearted federal attempt to promote infant health and protect working parents. As long as paid parental leave is not federally mandated, it will be difficult to believe that Congress takes those goals seriously.
Currently, the United States is the only country among forty-one studied by the Organization for Economic Cooperation and Development (“OECD”) that offers zero government-mandated paid parental leave.[4] The Family and Medical Leave Act (“FMLA”) guarantees twelve weeks of unpaid parental leave, but only for certain employees of large employers, leaving a large portion of the workforce without access to even unpaid parental leave.[5] Meanwhile, only 23% of employees nationwide have access to some amount of paid parental leave.[6] Nine states and D.C. mandate paid parental leave, while the federal government, beginning in October 2020, provides paid parental leave to federal employees.[7] Also, a minority of private employers offer paid parental leave as a benefit to their employees.[8] However, in all, a large majority of working new parents in the United States, in the weeks immediately following birth or adoption of a child, must choose between going back to work or not being paid at all.
This choice presents very real problems for new parents, if they can even afford the luxury of having the choice at all. Birthing parents require time to recover physically; the American Pregnancy Association considers recovery time to be six weeks, or eight weeks after a cesarean section.[9] During this time, particularly the first couple of weeks, birthing parents will likely experience heavy bleeding, uterine cramping, extreme hormonal changes and negative psychological effects, and painful urination and bowel movements.[10] These issues are difficult enough to handle in one’s home, much less at a place of employment.
Parents who choose to breastfeed face additional difficulties. The American Academy of Pediatrics (“AAP”) “recommends exclusive breastfeeding” for infants up to six months old, and continued breastfeeding to two years.[11] The USDA and WHO also recommend exclusive breastfeeding to six months.[12] However, only 25% of infants born in 2019 in the U.S. were breastfed exclusively to six months, and only 45% were breastfed exclusively to three months.[13] While 83% of these infants were breastfed at some point, many parents stopped before the recommended time, due to many factors, including “[u]nsupportive work policies and lack of parental leave.”[14] Low-income parents—those who cannot afford unpaid FMLA leave even if eligible[15]—are less likely to breastfeed.[16] Inequities in breastfeeding rates result in inequities in health outcomes, because breastfeeding confers health benefits on both baby and parent.[17]
For those who are neither birthing nor breastfeeding parents, there are still difficulties involved in being new parents to an infant. Infants do quite a bit of sleeping, but their sleep tends to be highly irregular.[18] A majority of infants first sleep through the night around three months old, and one-third of infants are still not regularly sleeping through the night at six months old.[19] Further, the AAP recommends that parents share a room with infants for at least six months to reduce the risk of infant death.[20] Room sharing makes it easier for parents to monitor infants—in other words, for parents to wake up in response to infants.[21] Insufficient and interrupted sleep causes parents to experience increased anxiety, depression, and risk of accidents.[22] For parents who return to a full-time job that operates during typical business hours, the old adage “sleep when the baby sleeps” is not terribly helpful (not that it ever was); employers may be required to provide a space for pumping breastmilk, but they are not required to provide nap time.
Finally, parents must find child care before returning to work. This is not easy; “34% of [working] families with young children [in 2021] are facing serious problems finding child care.”[23] Stories abound of monthslong and yearslong waitlists for quality child care, and of facilities charging fees just to put an unborn child on a waitlist.[24] Then there is the expense: the average monthly cost of infant care at a child care center in the U.S. is $1324.[25] Infant care with a home-based provider is cheaper, but still averages more than $1100 per month.[26] In Charlotte, North Carolina, quality infant care is more expensive than in-state tuition at the University of North Carolina at Chapel Hill.[27] It is difficult to imagine how parents who cannot afford to take unpaid FMLA leave could afford child care, even if they can find it.
Working parents who choose to breastfeed will no doubt benefit from the PUMP Act. But if the U.S. really took healthy families seriously, new parents would not be forced to return to work before their bodies are healed, before breastfeeding has been well-established, before they are getting enough sleep, and before a quality child care solution is available. It is past time for the U.S. to mandate paid parental leave.
[1] Darlene Superville, Biden Signs $1.7 Trillion Bill Funding Government Operations, Pbs NewsHour (Dec. 30, 2022, 2:27 PM), https://www.pbs.org/newshour/politics/biden-signs-1-7-trillion-bill-funding-government-operations; Lauren Kaori Gurley & Rachel Siegel, Congress Expands Protections for Pregnant and Nursing Workers, Wash. Post (Dec. 30, 2022, 10:11 AM), https://www.washingtonpost.com/business/2022/12/30/omnibus-pregnant-breastfeeding-congress/.
[2] Daniela Porat, Congress Adds Bill for Nursing Moms to Spending Package, Law360 (Dec. 22, 2022, 8:11 PM), https://plus.lexis.com/newsstand#/law360/article/1561024.
[3] Gurley & Siegel, supra note 1.
[4] Gretchen Livingston & Deja Thomas, Among 41 Countries, Only U.S. Lacks Paid Parental Leave, Pew Research Center (Dec. 16, 2019), https://www.pewresearch.org/fact-tank/2019/12/16/u-s-lacks-mandated-paid-parental-leave/.
[5] Paid Leave in the U.S., Kaiser Family Foundation (Dec. 17, 2021), https://www.kff.org/womens-health-policy/fact-sheet/paid-leave-in-u-s/.
[6] Id.
[7] Id.
[8] Id.
[9] Postpartum Recovery, American Pregnancy Association, https://americanpregnancy.org/healthy-pregnancy/first-year-of-life/postpartum-recovery/ (last visited Jan. 12, 2023).
[10] Id.; FAQs: Postpartum Pain Management, American College of Obstetricians and Gynecologists, https://www.acog.org/womens-health/faqs/postpartum-pain-management (Aug. 2022).
[11] Joan Younger Meek & Lawrence Noble, AAP Section on Breastfeeding, Policy Statement: Breastfeeding and the Use of Human Milk, American Academy of Pediatrics (June 27 2022), https://publications.aap.org/pediatrics/article/150/1/e2022057988/188347/Policy-Statement-Breastfeeding-and-the-Use-of.
[12] Breastfeeding: Facts, CDC, https://www.cdc.gov/breastfeeding/data/facts.html (Aug. 3, 2022).
[13] Id.
[14] Id.
[15] Julie Ajinkya, Who Can Afford Unpaid Leave?, Center for American Progress (Feb. 5, 2013), https://www.americanprogress.org/article/who-can-afford-unpaid-leave/.
[16] Rates of Any and Exclusive Breastfeeding by Sociodemographic Characteristic Among Children Born in 2019, CDC, https://www.cdc.gov/breastfeeding/data/nis_data/data-files/2019/rates-any-exclusive-bf-socio-dem-2019.html (last visited Jan. 12, 2023).
[17] Meek & Noble, supra note 11.
[18] Infant Sleep, Stanford Medicine Children’s Health, https://www.stanfordchildrens.org/en/topic/default?id=infant-sleep-90-P02237 (last visited Jan. 12, 2023).
[19] Id.
[20] Rachel Y. Moon et al., AAP Task Force on Sudden Infant Death Syndrome & AAP Committee on Fetus and Newborn, Sleep-Related Infant Deaths: Updated 2022 Recommendations for Reducing Infant Deaths in the Sleep Environment, American Academy of Pediatrics (June 21 2022), https://publications.aap.org/pediatrics/article/150/1/e2022057990/188304/Sleep-Related-Infant-Deaths-Updated-2022.
[21] Id.
[22] Danielle Pacheco, How Does Being a New Parent Affect Sleep?, Sleep Foundation, https://www.sleepfoundation.org/sleep-deprivation/parents (Sept. 22, 2022).
[23] Anya Kamenetz & Mansee Khurana, 1 in 3 Working Families Is Struggling to Find the Child Care They Desperately Need, NPR (Oct. 19, 2021, 5:08 AM), https://www.npr.org/2021/10/19/1047019536/families-are-struggling-to-find-the-child-care-they-desperately-need.
[24] Ely Portillo, Wait and Worry: The Painful Process of Finding a Daycare in Charlotte, and Paying for It, AXIOS Charlotte (Jan. 30, 2020), https://charlotte.axios.com/194189/wait-and-worry-the-painful-process-of-finding-a-daycare-in-charlotte-and-paying-for-it/; Sally Ho, Latest Hurdle in Grueling US Daycare Hunt: Waitlist Fees, The Herald News (Oct. 8, 2018, 12:24 PM), https://www.heraldnews.com/story/news/2018/10/08/latest-hurdle-in-grueling-us/9611741007/.
[25] Simon Workman, The True Cost of High-Quality Child Care Across the United States, Center for American Progress (June 28, 2021), https://www.americanprogress.org/article/true-cost-high-quality-child-care-across-united-states/.
[26] Id.
[27] Portillo, supra note 24.
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