Legal Update Volume 2016, Number 2

Supreme Court of Puerto Rico holds that employer’s failure to provide adequate place for breast milk extraction may constitute a violation of an employee’s right to privacy under the Constitution of Puerto Rico in certain circumstances.

On what may be Chief Justice Fiol Matta’s last opinion as a member of the Supreme Court of Puerto Rico, on January 25, 2016, the Court issued an Opinion in Siaca v. Bahia Beach Resort & Gulf Club, case no. AC-2012-102, published opinion pending, holding that an employer’s breach of its duty to provide a private, hygienic and safe place for extracting breast milk in the workplace may amount to a violation of an employee’s right to privacy under the Constitution of Puerto Rico. Under the Constitution of Puerto Rico, an individual’s right to privacy is enforceable against private parties, including an employer.

The Siaca opinion is the first instance where the Supreme Court of Puerto Rico had the opportunity to interpret Law 427 of 2000, as amended by Law 239 of 2006, which are the local laws that require private sector employers to provide a period of up to one hour to employees for purposes of breastfeeding a child of up to twelve (12) months or extracting breast milk. Moreover, said statute, limits itself to establishing a duty on the employer to enable a location for said duties although Law 239 makes reference in its statement of legislative intent, to a place that is private, hygienic and safe for said purpose.

In the case at hand, the issue was whether the employer’s conduct in failing to provide an adequate place for extracting breast milk amounted not just to a violation of Law 427, as amended, which does not provide for damages, but also amounted to a violation of the employee’s right to privacy under the Puerto Rico Constitution, which would allow for damages to be awarded.

While the Supreme Court of Puerto Rico did not conclude that an employer must specifically designate a place that is exclusively used for breastfeeding or breast milk extraction, the Court did set forth that the area must afford sufficient privacy such as window covering, locks and be clean such as to avoid dust and other health risks.   Clearly, an office or storage area that is over crowded, with no ventilation or access to electricity is unlikely to be suited.

Moreover, the Court made clear that since the conduct in question was rather outrageous and resulted in actual damages to the Plaintiff because she had to end breastfeeding her child because she suffered depression that affected her ability to adequately produce breast milk and feed her child as a result of her employer’s failure to provide an adequate location for said activities, there was indeed a violation of the employee’s constitutional right to privacy.

Nonetheless, the Court made clear that not all violations of Law 427, as amended, amount to a constitutional violation.

In conclusion, it is important for employers to be proactive when it comes to designating a location for breastfeeding or breast milk extraction at the workplace.  Employer’s must ensure that other employees understand the private nature of such activity and that the place designated, even if an office, be neat and clean and not cramped,  and be properly ventilated, easily accessible from the place where the employee is assigned, has a sign and lock to avoid interruptions, and is kept clean and free from clutter.  Failing to provide an adequate place for breast milk extraction at the workplace which interferes with a mother’s choice to breastfeed her child will now result in an award of damages rather than a mere administrative fine.

We are available to assist you in your compliance efforts as it pertains to this opinion.  For more information, feel free to contact Carmen Lucía Rodríguez or Gerardo J. Hernández at clrodriguez@nrlawpr.com or ghernandez@nrlawpr.com.

Leave a comment

Your email address will not be published. Required fields are marked *