My employee is returning from pregnancy leave and has asked to have time off and a suitable place to express milk at work. We have never had this request before. Can we deny her request and tell her to come back to work when she no longer has this need? Alternatively, can we require her to use her car, or the restroom, or go home? We really do not have a place at work designated for that purpose.
No, you may not deny the employee’s request to express milk at work or keep her from returning to work until she no longer has that need.
Both California and federal law require that all employers, regardless of company size, reasonably accommodate an employee’s request to express milk in private at work.
In addition, for those employers that have employees working in San Francisco, the city has enacted the San Francisco “Lactation in the Workplace Ordinance,” which applies to all private employers with one or more employees working within the geographical boundary of the city.
While some employers have permanent rooms specifically designed and designated just for lactation, an employer with operational, financial or space limitations may designate a temporary location as long as the requirements of the applicable laws are met and it is free from intrusion and used only by the employee for lactation purposes while the employee is expressing milk.
It is important that employers ensure privacy. Although the law does not require a lock on the door, it may be a good idea because a sign could be ignored. Even in small work areas or offices, there generally is the ability to find a suitable private place for an employee.
Often a manager’s or owner’s private office or a conference room may be used as long as it is private and the employee is not interrupted. Individual stand-alone lactation pods are now on the market and may provide another option for an employer who has difficulty finding a private place in the workplace.
A car would not be an appropriate location for privacy reasons, even if it was the employee’s car. The windows would allow others to look in and it would not have an electrical outlet required for pumping.
Asking the employee to go home would not satisfy the requirement of close proximity to the employee’s work area, generally thought of as on the same floor, in the same building, etc. It also could mean that if you are not paying for that travel time, the employee would be losing pay.
Changes made in 2019 to California law now prohibit the use of a restroom (not just a toilet stall) as an acceptable location. If an employer, however, is able to demonstrate to the Department of Fair Employment and Housing that it is an undue hardship due to the size of the employer, nature or structure of the business to have another location, then a restroom may be used.
Even in that event, the employer must make reasonable efforts to find a private and close location other than a toilet stall.
In addition to a private room or location, an employer must provide reasonable break time to the employee for this purpose, which may vary with the individual. While an employee has the use of the standard break and meal period time, if she needs additional time, the employer needs to make that available to her, but does not need to pay for that additional time.
Federal law limits the time for this accommodation to 1 year. California, however, has no time limit. An employee has the right to file a claim with the Labor Commissioner if the employee feels that the employer has not provided adequate break time and/or a suitable place to express milk. The Labor Commissioner may issue a citation and impose a $100 civil penalty for each violation.
For more lactation accommodation information, go to HRCalifornia.com or call the Labor Law Helpline.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.