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Lactation Accommodation Requirements Expanded Penalties Assessed for Failure to Comply

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Current law requires that an employer must provide a reasonable amount of break time to allow employees to express breast milk. The break time shall, if possible, run concurrently with any break time already provided to the employee. Such break time that does not run concurrently with authorized rest time can be unpaid. A recently enacted law has expanded the obligations of employers and specifies that the break time shall be provided “each time such employee has the need to express milk.”

Current law also provides that reasonable efforts must be made to provide employees with the use of a room or location other than a bathroom in close proximity to the employee’s work area, for the employee to express breast milk in private.

Under the new law, which goes into effect January 1, 2020, a requirement has been added that requires the room must be shielded from view and free from intrusion while the employee is lactating.

Second, the new law provides that a lactation room must:

  • Be safe, clean, and free of hazardous materials;
  • Contain a surface to place a breast pump and personal items;
  • Contain a place to sit; and
  • Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations needed to operate an electric or battery-powered breast pump.

In addition, an employer shall provide access to a sink with running water and a refrigerator suitable for storing milk (or another cooling device) in close proximity to the employee’s workplace.

If a “multipurpose room” is used for lactation among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is being used for lactation purposes.

Exceptions and Accommodations:

There are several exceptions for certain employers.

First, an employer in a multi-tenant building or a multi-employer worksite may comply with the law by providing a space shared among multiple employers within the building or worksite if the employer cannot provide a lactation location within the employer’s own workspace.

Second, employers or general contractors that coordinate a multi-employer worksite shall either provide lactation accommodations or provide a safe and secure location for subcontractor employers to provide lactation accommodation on the worksite, within two business days, upon written request of any subcontractor employer with an employee who requests an accommodation.

Third, an employer may comply with the requirements of the law by designating a lactation location that is temporary due to operational, financial, or space limitations. These temporary spaces shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, free from intrusion while the employee is expressing milk, and otherwise meet the requirements of the law.

Finally, an employer with fewer than 50 employees may establish an exemption from any of the lactation room requirements if it can show that it would impose an undue hardship when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Failure to Comply:

California law requires an employer to provide both meal and rest breaks for employees and that failure to do so results in a penalty of one hour of pay.  Under the new law, the denial of reasonable break time or adequate space to express breast milk shall be deemed a violation of Labor Code Section 226.7 resulting in a meal or rest break penalty.

In addition, the Labor Commissioner may impose a civil penalty in the amount of $100 for each day that the employee is denied break time or adequate space to express milk.

Lastly, the new bill makes it unlawful for an employer to discriminate or retaliate against an employee for exercising their rights under the lactation accommodation law.

Employers are required to develop and implement a policy regarding lactation accommodation that includes:

  • 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; and
  • A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the law.

The lactation policy shall be included in an employee handbook or set of policies that the employer makes available to employees, and distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave. In addition, if the employer cannot provide break time or a location that complies with the policy, the employer is required to provide a written response to the employee. (SB142)

What Should I Do Now:
  • Carefully review company policies and procedures for providing lactation accommodation to ensure compliance with the new legal requirements
  • Develop and implement a lactation policy to be included in your employee handbook or other policy statement
  • Distribute the policy statement to new hires and employees inquiring about parental leave.
  • Evaluate your physical space and determine if physical changes to the workplace may be required in order to comply.

 

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2019.