California recently expanded its existing law requiring employers to provide its employees with lactation accommodations. Specifically, Labor Code sections 1030, 1031, and 1033 were amended by adding section 1034 (SB 142). This expansion is not surprising, especially given California’s longstanding trend towards expanding employees’ labor and employment rights.
The new law, effective as of January 1, 2020, has several requirements.
- First, employers must provide a reasonable amount of break time to accommodate an employee who wants a lactation break.
- Second, employers must provide a suitable space that:
- Is safe, clean, and free of hazardous material;
- Has a surface to place a breast pump and personal items;
- Has a place to sit;
- Has access to electricity or alternative devices (such as extension cords or charging stations) needed to operate an electric breast pump.
- Employers must also provide access to a sink with running water and a refrigerator suitable for storing milk near the employee’s workstation. If a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, (i.e., a cooler).
While the above requirements place a somewhat significant burden on employers, the new law does not require employers to pay employees while they take a lactation break. In fact, the reasonable break time must be provided, if possible, concurrently with any break period already provided to the employee (i.e. rest and meal periods). Further, if the lactation break does not run concurrently with the employee’s regular rest period, the break time does not have to be paid.
SB 142 does provide some limited exceptions to the requirement that an employer must provide a room for lactation breaks. In instances where an employer has fewer than 50 employees, the employer may be exempt from the new accommodation requirement if it can demonstrate that the new requirements 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 the employer can demonstrate that accommodating an employee with the use of a room or other space imposes an undue hardship, the employer must make reasonable efforts to provide the employee with the use of another private room or location that is not a bathroom or toilet stall and is in close proximity to the employee’s work area.
As a best practice, employers should update their employee handbooks to (1) include a statement about an employee’s right to request lactation accommodation, (2) include the process by which an employee can make the request, (3) include the employer’s obligation to respond to the request, and (4) include a statement about the employee’s right to file a complaint with the Labor Commissioner for violation of the employee’s right to lactation accommodation. Employers should further train their supervising employees and human resources departments on how to respond to an employee’s request for lactation accommodation and understand the employer’s obligations under the new law.