Existing state and federal law has required employers to provide a location and a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. Most employers already have lactation accommodation policies, but with the recent passage of SB 142, California employers must update those policies and be prepared to address additional potential accommodations for lactating employees.
Citing studies finding “employment of mothers outside the home has been found to have a negative influence on the duration of breastfeeding” and noting “unsupportive work environments” include lack of privacy and adequate time to express milk, SB 142 sought to remove such barriers.
New Lactation Room Requirements
Specifically, the California Labor Code now requires that the lactation location not be a bathroom or restroom, be private (shielded from view and free from intrusion from co-workers and the public), and located close to the employee’s work area. The location must also:
- Be safe, clean and free of toxic or hazardous materials;
- Include a place to sit;
- Have a surface to place a breast pump and other personal items; and
- Have access to electricity or alternative devices (such as extension cords or charging stations) allowing you to operate an electric or battery-powered breast pump.
The employer also must provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace.
Multi-purpose rooms may be used as lactation space if they satisfy the requirements for space. However, use of the room for lactation takes priority over other uses for the time it is in use for lactation purposes.
Mandated Employer Lactation Policy
It is important to note that effective January 1, 2020, employers are required to develop a policy expressly detailing the employee’s right to request lactation accommodation and the process to make such a request. The policy should be included in an employee handbook or set of policies that the employer makes available to employees and distributed to new employees upon hire and when an employee makes an inquiry about or requests parental leave.
Employers must also inform employees of the right to file a complaint with the Labor Commissioner if an employee is denied reasonable break time or adequate space to express milk, or have otherwise been denied rights related to lactation accommodation. Discrimination or retaliation against employees who exercise their rights to lactation accommodation, including those who request time to express milk at work and/or who lodge a complaint related to the right to lactation accommodation are expressly prohibited and should be addressed in the employer’s policy.
Exemptions for Small Employers
The new law provides an undue hardship exemption with regard to the location for lactation accommodation for any employer with fewer than 50 employees that can demonstrate that it would impose an undue hardship by causing significant difficulty or expense based on the size, financial resources, nature, or structure of the business. In that case, the employer must make reasonable efforts to find a private and close location (other than a toilet stall). Also, 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. With significant potential penalties associated with failing to comply with these requirements, Cook Brown recommends consulting with legal counsel before denying such an accommodation.
