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“2020 Changes to Workplace Lactation Accommodations”

Contra Costa County Bar Association By: James Wu

As stated in the prior month’s Employment Law themed Contra Costa Lawyer Magazine, “Employment Law is not just a practice area […] it permeates all facets of society and culture.” California law regarding accommodating lactating mothers is another prime example of the realities of that statement.

Since about 2002, California employers have been required to provide eligible employees with reasonable break time and a location to express breast milk. Effective January 1, 2020, California greatly expanded those requirements, and added consequences for non-compliance. These new lactation accommodation obligations (try saying that fast three times) range from requirements for employers to promulgate a policy and procedure regarding lactation accommodations, to specifications for elements of a compliant private location for employees to express breast milk while at work. If employers fail to meet some of these requirements, they could be required to provide impacted employees with premium pay, and also could be subjected to civil penalties.

Pre-2020 Requirements: Prior to 2020, employers were required to provide some lactation accommodations to employees. Primarily, employers were already required to provide the following:

  • Reasonable break time to express milk: specifically, employers were required to provide break time that could run concurrently with any other break time already provided to the employee (like rest and/or meal breaks); and
  • A private location, other than a bathroom, in close proximity to the employee’s work area for an employee to use to express milk.

It was also a “best practice” for employers to include a lactation accommodation policy in their Employee Handbook.

Additional Requirements Effective in 2020: In October 2019, Governor Newsom signed legislation (SB 142) that added numerous requirements for employers, effective January 1, 2020. This new law generally focuses upon the following:

  • Clarifying that lactation break time shall be provided “each time such employee has need to express milk” even if not concurrent with any other break already provided to the employee. Such additional break time can be unpaid;
  • Establishing additional specifics regarding the lactation location;
  • Requiring employers to create/publish a written lactation accommodation policy; and

The new law, Labor Code section 1030 et seq., also establishes new penalties for violations.

Expanded Requirements for Lactation Location: Employers were already required to provide “employees with 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.” (Labor Code section 1031(a). In addition, effective January 1, 2020, employers must also provide a lactation location that also complies with all of the following requirements:

  • Must be shielded from view, and free from intrusion while the employee is expressing milk;
  • Must be safe, clean and free of hazardous materials;
  • Has a surface to place a breast pump and personal items;
  • Has a place to sit;
  • Provides access to electricity or alternative devices (extension cords, or charging stations) needed to operate a breast pump;
  • Provides access to a sink with running water, in close proximity to the employee’s workspace;
  • Provides access to a refrigerator (or employer-provided cooler) to store milk in close proximity to the employee’s workspace;
  • And, if using a “multipurpose” room, (for example a conference room, store room, or shared office), the use for lactation must take precedence over other uses when it is needed for lactation accommodation purposes.

Certain employers may make use of any of the following exceptions from the general requirements stated above (see Labor Code sections 1031(f)-(i)). These exceptions include:

  • An employer in a multitenant building or multiemployer worksite may comply 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.
  • Employers or general contractors coordinating a multiemployer worksite shall either provide lactation accommodations or provide a safe and secure location for a subcontractor employer to provide lactation accommodations on the worksite, within two business days, upon written request of any subcontractor employer with an employee that requests an accommodation.
  • An agricultural employer, as defined in Section 1140.4, shall be deemed to be in compliance if the agricultural employer provides an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.
  • An employer may comply 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 compliant with this section.
  • And finally, an employer with fewer than 50 employees may be exempt from a requirement of this section if it can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. If that employer can demonstrate that the requirement to provide an employee with the use of a room or other location, other than a bathroom, would impose such undue hardship, the employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

New Employee Handbook Policy/Procedure Required: While it was a good idea to have a policy regarding lactation breaks and accommodations before 2020, such a policy is now required. Specifically, Labor Code section 1034 details that the policy must include the following:

  • A statement about an employee’s right to request lactation accommodation.
  • A description of the process by which an employee can request a lactation accommodation.
  • An explanation of the company’s obligation to respond to an employee’s request for accommodation.
  • A statement about the employee’s right to file a complaint with the Labor Commissioner for any violation of the right to a lactation accommodation.
  • If the employer cannot provide break time or a location that complies with the policy, the employer shall provide a written response to the employee.

The employer must distribute its policy to each employee at the time of hire, and when an employee requests or inquires about parental leave.

Potential Exposure for Non-Compliance: The new law specifies that the unlawful denial of reasonable break time or adequate location shall be deemed failures to comply with Labor Code section 226.7 (which mandates rest and recovery periods). As a result, employees are entitled to the one hour of premium penalty for each workday a violation occurs. This consequence also opens up employers to potential Private Attorneys’ General Act (PAGA) claims over lactation accommodation issues as well – which could result in business-breaking litigation.

In addition, the California Labor Commissioner may impose a civil penalty of up to $100/day for each day an employee is denied reasonable break time or adequate location to express milk. And, it is a given that employers cannot discriminate or retaliate against employees for exercising their rights under the law.

Conclusion and Compliance: Employers should determine what procedures can be put in place for employees to request lactation accommodations, and how the employer will respond, including applicable timeframes for requests and responses. Such information will be critical in creating the Handbook policy that must be implemented and distributed. Employers will also need to determine how it will be addressing the lactation location requirements, and employers with less than 50 employees should consider whether, and how they will evaluate and document whether providing a compliant location will constitute an “undue burden." Finally, if employers find themselves required to pay the 1 hour of premium penalty, they must be sure such payment is reflected properly on the employee’s itemized wage statement so as to void those additional potential PAGA and individual claims.

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