California expands lactation accommodation requirements

California has enacted legislation (Senate Bill 142) that will expand the requirements for providing lactation accommodations to employees. Senate Bill 142 takes effect on January 1, 2020.

Background:

Under current state law, employers must provide a reasonable amount of break time to employees who need to express milk for the employee's infant child. The law also requires an employer to make reasonable efforts to provide the employee with the use of a room, or other location, other than a bathroom, in close proximity to the employee's work area, for the employee to express milk in private.

Senate Bill 142:

Policy Requirements:

Employers must develop and implement a policy that includes the following:

• A statement about an employee's right to request a lactation accommodation.
• The process by which the employee should make the request.
• An employer's obligation to respond to the request.
• A statement about an employee's right to file a complaint with the Labor Commissioner for any violation of their rights under the law.

Employers must:

• Include the policy in an employee handbook or set of policies that the employer makes available to employees.
• Distribute the policy to new employees upon hire and when an employee makes an inquiry about or requests parental leave.

Note: 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.

Lactation Room Requirements:

Senate Bill 142 requires employers to provide (rather than stating "make reasonable efforts to provide") an employee with the use of a room or other location for the employee to express milk in private. The room or other location must:

• Not be a bathroom;
• Be in close proximity to the employee's work area, shielded from view, and 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; and
• 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 employer 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. If a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.

If a multipurpose room is used for lactation, the use of the room for lactation must take precedence over other uses, but only for the time it is in use for lactation purposes. An employer in a multi-tenant building or multiemployer worksite may comply with the law 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.

An employer may comply with the law by designating a lactation location that is temporary due to operational, financial, or space limitations, but these temporary spaces must be otherwise compliant with the law.

Under Senate Bill 142, an employer that employs fewer than 50 employees may be exempt from the requirements if it can demonstrate that the requirements would impose an undue hardship on the business. An undue hardship is defined as causing 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 an undue hardship, the employer must 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.

Other Protections:

Senate Bill 142 clarifies that employers must provide a reasonable amount of break time each time the employee needs to express milk. The denial of reasonable break time or adequate space to express milk will be considered a failure to provide a rest period in accordance with state law. This means an employer would be required to pay employees one additional hour of pay for each rest period it failed to provide.

The law also prohibits an employer from retaliating against an employee for exercising or attempting to exercise rights under the law.

Compliance Recommendations:

California employers should review and update policies and procedures to ensure compliance with the changes. Supervisors should also be trained on the law.