California Beefs up Requirements for Lactation Accommodation

California employers will have to comply with sweeping changes to a state law requiring businesses to accommodate working mothers who breastfeed. The law went into effect on January 1, 2020.

All employers, whether public or private, will have to provide a lactation room or lactation location with access to electricity, a sink with running water, and a refrigerator and develop and distribute a policy regarding lactation accommodation or face increased fines of $100 a day.

The new requirements were signed into law by Democratic Governor Gavin Newsom on October 10, 2019.

California already has a “lactation accommodation” law on the books. It’s been in effect since 2002. It requires that employers provide reasonable break time for employees to express breast milk. It also requires an employer to make reasonable efforts to provide employees with a room or other location, other than a bathroom, close to an employee’s work area for an employee to use so that breast milk can be expressed in private.

However, employers were exempted under the previous break time requirement if the employer’s operations were seriously disrupted by providing time to employees who need to express milk. Employers who violated the old requirements were subject to a penalty of $100 a violation.

San Francisco has also had a lactation accommodation policy in place since 2017. The ordinance, that went into effect January 1, 2018, requires that businesses provide employees with breaks and a designated location for lactation and to notify employees of their right to accommodation for lactation.

Federal law also comes into play. The federal Fair Labor Standards Act generally requires that for up to 1 year after a child’s birth, a nursing mother must be provided reasonable and unpaid break time to express milk in a private place other than a bathroom unless the employer successfully claims that doing so provides undue hardship.

New lactation law clarifies ‘break time’

Under the previous version of the law, employers were required to give employees a reasonable amount of break time to express milk that ran at the same time as any break time already provided to the employee or provide unpaid break time.

The new law clarifies that a reasonable amount of time must be provided each time the employee has a need to express milk but the break time does not have to be paid.

What does a lactation room need? 

The new California law repeats previous requirements that a lactation room cannot be a bathroom and should be close to the employee’s work area. It adds the requirement that the lactation room or location must be shielded from view and free from intrusion while the employee is expressing milk. In addition, it also specifies that a lactation room must:

• Be safe, clean, and free of hazardous materials, as defined
• Contain a surface to place a breast pump and personal items
• Contain a place to sit
• Have access to electricity or alternative devices, including extension cords and charging stations needed to operate an electric or battery-powered breast pump.

The new law also requires that lactation rooms and lactation locations have access to a sink with running water and a refrigerator that is close to the employee’s workplace and suitable for storing milk. If a refrigerator can not be provided, an employer may provide another cooling device such as a cooler, according to the new law.

If a multipurpose room is used for lactation, the use of the room for lactation takes precedence over the other uses, but only when it is being used for lactation.

Employers in multitenant buildings or multiemployer worksites who cannot provide a compliant location within the employer’s own workspace may comply by providing a shared space within the building.

If there are “operational, financial, or space limitations,” a temporary space may be used but the temporary space can not be a bathroom and has to be close to the employee’s work area, shielded from view, free from intrusion while the employee is expressing milk and otherwise compliant.

Lactation accommodation policy

Under the new law, employers must develop and implement a lactation accommodation policy. The policy should be included in the employee handbook or in a set of policies the employer makes available to employees. The policy must be distributed to new employees upon hire and also when an employee asks about or requests parental leave.

The policy must include:

• A statement about an employee’s right to request lactation accommodation
• The process by which the employee makes the request
• An employer’s obligation to respond to the request
• A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the law.

If an employer cannot provide break time or a location that complies with the policy, the employer must provide a written response to the employee.

Exemption for lactation law

Employers with fewer than 50 employees can ask for an exemption on the basis of undue hardship by claiming that the requirement causes the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

However, the new law still requires that an employer which obtains an exemption make a reasonable effort to provide a place for an employee to express milk, other than a toilet stall, close to the employee’s work area so that the employee can express milk in private.

No retaliation/increased penalties

Employers cannot discharge, discriminate, or retaliate against an employee for taking advantage or attempting to take advantage of their rights under the new law.

The law also raises the stakes for failing to comply. A civil penalty of $100 for each day that the employee is denied break time or adequate space to express milk can be assessed.