California employers with 50 or more employees need to prepare for a new law that requires them to provide private lactation spaces, reasonable break times to express milk, and policies spelled out for workers, write attorneys with Liebert Cassidy Whitmore. The law takes effect Jan. 1, 2020, and failing to comply could mean fines of $100 a day.
A new California law (SB 142) takes effect Jan. 1, 2020, and significantly expands an employer’s obligation to provide lactation accommodations for employees and provides consequences for non-compliance.
The law follows in the footsteps of San Francisco’s 2017 “Lactation in the Workplace Ordinance.” California employers should be aware of these new obligations to ensure their worksites are compliant.
Under existing law, employers are required to give employees a reasonable amount of break time to express milk that shall run concurrently with any break time already provided to the employee or otherwise be unpaid. SB 142 now also clarifies that a reasonable amount of time be provided each time the employee has a need to express milk.
While providing lactation accommodations are not new to California employers, this new law requires employers to provide private lactation spaces—either a permanent or temporary space—that must satisfy the following conditions:
Employers are also required to provide access to a sink with running water and a refrigerator or cooler suitable for storing milk in close proximity to the employee’s workspace. While the requirement to provide a sink and refrigerator does not necessarily require they be provided in the lactation room, the new law is unclear on whether providing these in a bathroom will satisfy this requirement.
Further, if an employer designates a multi-purpose room for a lactation room, then lactation purposes shall take precedence over the other uses for the time the room is used for lactation purposes.
Employers in multiemployer worksites may comply with SB 142 by providing a space shared among multiple employers within the worksite if the employer cannot provide a lactation location in the employer’s own workspace.
Additionally, employers or general contractors coordinating a multiemployer worksite must 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.
A limited exemption to the requirement that an employer provide a room to lactate may exist for an employer with less than 50 employees. The exemption will only apply for such a smaller employer if they can show that making a space available for breast pumping would impose an undue hardship by causing significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer’s business.
However, such employers are still expected to make reasonable efforts to provide a lactation accommodation to the employee other than a toilet stall.
SB 142 also requires that California employers develop and implement a policy regarding lactation accommodation requirements that include the following:
Therefore, employee handbooks and policies must now include the lactation accommodation policies listed and employers should make them readily available to all employees. Employers should distribute the policy to new employees at the time of hire and whenever an employee makes an inquiry about or requests parental leave.
If for some reason an employer cannot provide a break time or location that complies with their policy, the employer must provide a written response to the employee.
Employers not in compliance with SB 142 are subject to consequences. An employer who fails to provide reasonable break time or adequate lactation accommodations may be fined $100 for each day an employee is denied reasonable break time or adequate space to express milk.
In addition, an employer who discharges, discriminates, or retaliates against an employee for exercising their rights under the lactation accommodation law is in violation of SB 142, and that employee may file a complaint with the Labor Commissioner.
In response to SB 142, California employers should review each of their worksites to determine what potential on-site locations can be used for lactation accommodations and make any necessary changes to the workplace in order to comply with the new requirements.
This article, co-authored by Savana Manglona, was published by Bloomberg Law on December 5, 2019.