The amendment to the Sex Discrimination Ordinance (SDO) providing for protection against unlawful breastfeeding discrimination will come into force on 19 June 2021. For details of these changes, please see our earlier Legal Update on "Changes to Hong Kong Discrimination Law – What Should Employers Do?". Employers should be thinking about what changes they need to make now in preparation for the introduction of the change.
Below are some FAQs to help employers think about some of the issues that may arise:
- 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.
For example, an employer who allows an employee with diabetes breaks to inject insulin but refuses an employee's request to take any break to express milk for her baby may be giving less favourable treatment on the ground of breastfeeding. If it is, then it would be unlawful direct discrimination on the ground of breastfeeding when the new amendments take effect.
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.
For example, an employer having a policy that no part-time working is allowed for employees at manager grade and refusing a breastfeeding manager's request to work part-time may give rise to an indirect breastfeeding discrimination claim if the employer cannot justify the no part-time policy.
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 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.
As a matter of good practice, 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.
Employers should also consider what alternative arrangements can be made if no facilities can be provided in the workplace, e.g., allowing employees to return home to breastfeed their child or allowing them to visit community baby care facilities near the office during working hours.
- 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 condition or requirement may well be justifiable but employers should consider the arrangements and, where there may be potential adverse impacts caused by a condition or requirement, ensure that they are justifiable.
The Equal Opportunities Commission of Hong Kong (EOC) recommends to count lactation breaks, which is consistent with the Department of Health guidance, i.e., two 30-minute lactation breaks (or one hour in total) for an eight-hour working day, as paid working hours.
- Where Can I Get Guidance on
Employer Best Practice for Breastfeeding Employees?
The EOC has recently released guidance for employers on equality for breastfeeding women, which is available at https://www.eoc.org.hk/eoc/Upload/UserFiles/File/FactSheet/GuidanceOnBreastfeedingInEmploymentAnd
RelatedSectors_e.pdf and a leaflet on breastfeeding discrimination in the workplace, which is available at https://www.eoc.org.hk/eoc/Upload/UserFiles/File/FactSheet/LeafletOnBreastfeedingDiscriminationIn
TheWorkplace_e.pdf
The guidance and leaflet do not have legislative force and so non-compliance with the recommendations in them will not in itself be a breach of any legal requirement (but it can if the circumstances are such that the elements for unlawful discrimination are satisfied). That said, of course an employer that complies with best practice is unlikely to breach the SDO. The Employer's Guide to Establishing Breastfeeding Friendly Workplace published by the Department of Health is also available at https://www.fhs.gov.hk/english/breastfeeding/30031.pdf
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