On January 1, 2020, California’s new lactation accommodation law, Senate Bill (SB) 142, went into effect and imposed detailed requirements for employers to provide lactation rooms and other facilities, along with new policies and procedures to administer lactation break programs. Just two months later, most California employees started working remotely from home due to the COVID-19 pandemic and state and local ordinances. Thus, most employers had not yet fully implemented the new accommodation requirements before employees left the workplace. Now that many employees are getting vaccinated and returning to the workplace, it is a good time for California employers to review their lactation accommodation policies to ensure that they fully comply with the law.
Moreover, California’s legislators have shown their strong interest in enhancing enforcement of lactation accommodations in the workplace. Consider the following policy considerations in the legislative history of SB 142, as well as in Assembly Bill 1119 seeking to add a new protected category of “family responsibilities” under California’s Fair Employment and Housing Act:
- Approximately half of new mothers enter the workforce before their child is one year old.
- The American Academy of Pediatrics recommends at least six months of breast-feeding for a new baby.
- The Office of the Surgeon General highlights that workplace concerns are a major barrier to new mothers breast-feeding, with only 25 percent of surveyed employers reporting a company program to accommodate expressing breast milk.
- The Office of the Surgeon General also emphasizes that employment concerns are one of the major barriers to new mothers having the ability to breastfeed.
- According to the U.S. Bureau of Labor Statistics, 80 percent of the nearly 1.1 million workers who dropped out of the labor force in September of 2020 were women (865,000 women compared to 216,000 men).
In light of these findings, California legislators have emphasized that California must foster workplaces that allow women to regain and maintain employment long after the COVID-19 pandemic—and ensuring adequate lactation accommodations is one of the priorities to achieve that goal.
SB 142 is codified in Sections 1030-1032 of the California Labor Code, and expressly requires employers to establish lactation accommodation policies, spaces, and programs for providing adequate breaks. While Labor Code Section 226.7 provides penalties if employers fail to provide compliant lactation breaks, the most significant risks to employers are with equal employment litigation. Unlike with meal, rest, and recovery breaks, which are not directly related to the sex of an employee, lactation break requirements pertain only to women who are breastfeeding. As such, employers that fail to provide adequate lactation accommodation policies, spaces, and breaks may face lawsuits that allege harassment, discrimination, or retaliation based on sex and medical conditions related to pregnancy.
Employers may want to consider taking the following five steps to ensure compliant lactation accommodation programs.
1. Draft a compliant policy.
An employer may want to consider drafting a policy that includes the following:
- “A statement about an employee’s right to request lactation accommodation.”
- “The process by which the employee makes the request.”
- A statement of the company’s obligation to respond to each employee request, and related procedures. The statement may also state that if the company cannot provide break time or an adequate room, that the company will provide a written response to the employee.
- “A statement about the employee’s right to file a complaint with the Labor Commissioner for any violation” of their lactation accommodation rights.
The law also requires an employer to include the lactation accommodation policy in an employee handbook or set of policies made available to employees, and to distribute the policy to new employees upon hiring and when any employee asks about or requests parental leave.
2. Provide an adequate lactation space.
The law also requires that the company “provide an employee with the use of a room or other location for the employee to express milk in private.” It cannot be a bathroom. Instead, the room must meet the following requirements:
- “[B]e in close proximity to the employee’s work area, shielded from view”
- “[Be] free from intrusion while the employee is expressing milk”
- “Be safe, clean, and free of hazardous materials”
- “Contain a surface to place a breast pump and personal items”
- “Contain a place to sit”
- “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”
The company must also “provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace.” Some exceptions to these requirements may apply to certain employers based on their specific industries. In addition, “an employer that employs 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.”
3. Provide a lactation break program.
The Labor Code also requires every employer to “provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has the need to express milk. The break time shall, if possible, run concurrently with [ordinary rest and meal] break time [that is] already provided to the employee.” If lactation breaks do not run concurrently with ordinary rest breaks, then the lactation time can be unpaid. A company may want to consider designating a gatekeeper to administer the lactation break program whose duties include ensuring that the lactation space is maintained properly, that an orderly and fair scheduling system is established for the use of the room, and that adequate documentation of all requests for breaks exists, as well as documentation of the company’s responses to the requests.
4. Train employees on the lactation policy.
The company may also want to consider training human resources personnel and other operations management on the requirements of the policy and the employer’s commitment to ensuring that all women who need lactation breaks are provided accommodation on a timely basis and are not subject to any sort of related harassment, discrimination, or retaliation. Managers and supervisors may want to be mindful that lactation break rights apply to all employees, both exempt and nonexempt employees.
5. Regularly survey women who have needed the program.
The company may also consider requiring the designated gatekeeper to regularly (perhaps monthly) survey employees using the lactation program to ensure that they have received all the breaks they requested, that the company properly designated the break time as paid or unpaid, that employees were satisfied that the room was adequate and compliant with the policy, and that any concerns or ideas for improving the policy were addressed.
With many companies, employees are returning to the workplace for the first time in more than a year. Employers may want to consider distributing their lactation accommodation policies to all returning employees and requiring that the employees sign their acknowledgment of receipt of the policies. An employer may also want to have employees confirm their understanding that if they have any questions or concerns about the policy, they should immediately report them to the designated gatekeeper. By taking these steps, employers may help facilitate a better transition for nursing mothers back to the workplace and provide a strong defense to related litigation.
A version of this article was previously published in Law360.