Heather McMillan Nakai does not mind going first.
A tribal gaming attorney living in Rockville, Md., and a member of the North Carolina-based Lumbee Tribe, McMillan Nakai gave birth to her daughter Haazbaa’ in November 2013, making her the first person in her office to fall under its new lactation policies enacted after the Affordable Care Act was signed into law and upheld by the U.S. Supreme Court.
As per a 2010 amendment to the Fair Wage and Labor Standards Act passed in conjunction with the passage of the Affordable Care Act, companies with at least 50 employees or more are now required to provide break time and a private place – other than a bathroom stall — for a nursing mother to pump breast milk until her baby’s first birthday.
Smaller companies may be exempt from the requirement, but only if they can show that making those accommodations would create an undue hardship.
Prior to the amendment, only 13 states had laws requiring employers to allow pumping during breaks or provide a place to pump. Only three of those states – California, Hawaii and Oregon – have codified penalties for employers who violate a worker’s right to pump.
Two additional states, Georgia and Oklahoma, had statutes that encourage workplace pumping but did not require employers to provide breaks or other forms of in-office support.
Despite the potential “awkward factor” associated with discussing the situation with her two male supervisors – one a parent and one not — McMillan Nakai knew early on in her pregnancy that she planned on breastfeeding and was going to do whatever it took to make that happen.
To accommodate her, McMillan Nakai’s office purchased a small refrigerator for breastfeeding employees. For now, that refrigerator stays in McMillan Nakai’s office, along with a “Do Not Disturb” sign for her pumping breaks.
“That my employer was willing to provide a fridge and just let me use my office. That saved me a ton of time versus what previous co-workers have had to do, which involved going to one room to pump, then go to another place to wash out the pump parts and store their breastmilk,” she said. “It’s saved my employer time and allowed me to be more efficient because I can work while I pump.”
Her employer is scheduled to move later this year to a larger facility, complete with a separate lactation room. The mini-fridge currently in McMillan Nakai’s office will eventually rotate among other employees as needed.
Thanks to the traveling requirements that come with being a gaming attorney in Indian Country, she has had conversations with several facilities – both Native and non-Native — about securing pumping accommodations while on the road for work.
“It’s been really interesting to see that tribal entities are already facing this and handling it,” she said. “On a recent trip to one tribe’s casino for a conference, they already had accommodations in place for their employees. They just let me use the green room like their employees do. They were not fazed at all when I asked about it.”
Similar to McMillan Nakai’s experience with another tribe’s casino, Cherokee Nation Businesses has rooms set aside solely for lactating employees at its larger properties, both gaming and non-gaming.
The economic engine of the country’s largest tribe, CNB employs more than 7,000 people nationwide. The bulk of those jobs are based in or immediately adjacent to the tribe’s 14-county jurisdictional area in northeastern Oklahoma, a state that prior to the Affordable Care Act’s implementation did not require employers to provide pumping breaks and spaces.
“Cherokee Nation Businesses strives to provide its employees with appropriate accommodations for breastfeeding,” CNB communications director Amanda Clinton said. “Today, our two largest entertainment venues, Hard Rock Hotel & Casino Tulsa and Cherokee Casino & Hotel West Siloam Springs, offer private rooms dedicated to mothers who are pumping.
“Our corporate facility that houses many of our diversified businesses also has this accommodation. For Cherokee Nation Businesses properties on a smaller scale, management provides office space to those employees who need this privacy.”
Workplace accommodations for breastfeeding may be meeting important needs for working moms, but other obstacles remain, such as the ACA’s provisions regarding breast pumps. Under the law, unless it is a grandfathered plan, private health insurance providers must cover the cost of a hospital grade breast pump. Depending on an individual plan’s language, that coverage could specifically mean either rental or purchase costs, a manual or electric pump or a single breast pump versus a double.
However, for nursing Native moms, the provision is not quite as straightforward. Although citizens of federally-recognized tribes who solely rely on Indian Health Services without third-party coverage are eligible to receive an exemption from the Affordable Care Act’s tax penalties, they are not necessarily entitled to all of the provisions that apply to people with outside insurance, whether that comes through work, Medicaid or the health insurance marketplace, including breast pumps.
“Under the Affordable Care Act, the government considers individuals who rely on IHS as uninsured,” said Cori Loomis, the Affordable Care Act educator for Crowe and Dunleavy, an Oklahoma City-based law firm that counts the community’s urban Indian clinic among its clients. “Tribal members are exempt from (tax) penalties no matter what if they’re uninsured, but without third party coverage, you might not necessarily have access to certain kinds of care in an area.”
Article courtesy of the Native Health News Alliance
The Native Health News Alliance (NHNA), a partnership of the Native American Journalists Association (NAJA), creates and promotes shared health news content for American Indian communities at no cost.