California’s new lactation accommodation law, effective January 1, 2020, affects a broad spectrum of California employers.
In Episode 44 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law experts Matthew Roberts and Bianca Saad discuss new lactation accommodation requirements, highlighting location specifications, a new policy requirement, rest and meal break premium pay penalties, private right of action, exceptions, and the undue hardship exemption.
More Than Just a Location
Prior to the passage of the new lactation accommodation law, employers only had to provide a location other than a toilet stall. Now, there are a number of new requirements employers have to meet.
Under the new law, Roberts explains, the employer must meet the following expanded requirements for the room they provide to the lactating parent:
• The room cannot be a restroom;
• It must be a room in close proximity to the employee’s workplace;
• Within the room, there must be an electrical outlet or a way for the lactating parent to charge a battery-operated breast pump;
• There must be a place to sit;
• There must be a shelf to place a breast pump or other personal items;
• The room must be free from intrusion; and
• No toxic or hazardous materials can be present in the room (i.e., a storage closet).
In addition to the space itself, an employer must provide access to a sink with running water and a refrigerator in close proximity to the employee’s work area. If the employer cannot provide a refrigerator, the statute allows for an employer to provide an alternative mechanism, Saad says, such as an employer-provided cooler.
Three P’s: Policy, Penalties and Protections
In addition to the requirements outlined, a new policy requirement accompanies the new lactation accommodation law, Saad explains. The policy needs to be given to all new hires and any employee who makes a request about parental leave.
The statute does not make a distinction between genders; all new hires receive the policy, Saad says. Similarly, any employee who requests or makes an inquiry about parental leave will need to be given the policy as well.
The new law also attaches rest and meal break premium pay penalties to lactation accommodation breaks, Roberts says. An employer may be liable if the employer fails to provide the time needed for an employee to express milk.
An employee may take as many breaks as needed to pump or express breast milk, with the expectation that the employee coordinates such time with regularly scheduled rest and meal breaks. However, if an employee needs additional time, the time must be provided. Any additional time or breaks provided are unpaid unless the employer chooses to pay the employee during these breaks.
“…That means that premium pay is under Labor Code Section 226.7, which is the equivalent of one hour of the employee’s regular rate of compensation, so their base rate…is not only attaching to meal and rest break violations, but also this new lactation accommodation break,” Frank clarifies.
A private right of action coexists with this new law as well. So, any employee who is either denied the proper location or the time to express milk can bring a lawsuit against the employer for violating protections. Moreover, the employee is protected from discrimination or retaliation for needing a location or taking time away to express milk, Frank says.
Frank also brings up the question of how non-office workplaces (for example, an agricultural field setting) can provide a room for lactation.
“The statute does allow for temporary facilities to be erected, but remember the keyword there is ‘temporary,’” Roberts says. “For agricultural workers, a temporary facility would be something like an air-conditioned trailer or tractor. Moreover, since there are a lot of multi-tenant buildings or workshare areas, multiple employers in one building are allowed to share one lactation accommodation space.”
Although the statute includes an undue hardship exemption, it is a high burden to meet, Frank emphasizes.
First, the exemption is limited for employers with fewer than 50 employees, Saad explains. Then, employers need to show that meeting the lactation accommodation requirements would impose an undue hardship, which means it would cause significant difficulties or expense based on company size, financial resources or the nature or structure of the business.
If the employer does meet the exemption requirements, the business still is required to provide a location to express milk other than a toilet stall.
Frank recommends that employers that meet the undue hardship exemption consult with legal counsel.
The California Chamber of Commerce HRCalifornia website provides up-to-date information explaining the new lactation accommodation law. A sample lactation accommodation policy and other resources are available to CalChamber members.
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