Employment Law Alert: San Francisco’s New Lactation in the Workplace Ordinance

The City of San Francisco has enacted the Lactation in the Workplace Ordinance, which is set to take effect on January 1, 2018. The new San Francisco law goes beyond existing federal and California state law requirements for lactation accommodation, mandating a variety of additional actions. The San Francisco law applies to any employer with at least one employee working in San Francisco, and applies to all employees (regardless of full-time or part-time status).

Like California state law, the San Francisco law requires employers to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s child, and that the break run concurrently with any existing break (when possible). Federal and State law require the employer to make reasonable efforts to provide lactation break space near the employee’s work area, other than a bathroom, and that the space be private and shielded from view/intrusion. The San Francisco law also requires the lactation break space to be equipped with a surface (e.g., a table or shelf) to place a breast pump or other personal items, a place to sit, and electricity. The lactation break space must also be safe, clean, and free from toxic or hazardous materials.

The San Francisco law also goes beyond state law by requiring a refrigerator near the employee’s work area where the employee can store breast milk, and access to a sink with running water. A multi-purpose room can be used to satisfy the law’s requirements, as long as the primary purpose of the room is a lactation location, and employees are notified that lactation breaks take precedence over other uses of the room. While the California and San Francisco laws provide an employer defense based upon serious operation disruption and “undue hardship,” the federal law undue hardship defense may only be asserted by employers with less than 50 employees.

The San Francisco law requires employers to develop and implement a Lactation Accommodation policy. The policy must contain a variety of mandatory provisions, including: statement of the right to request lactation accommodation; process to request lactation accommodation; requirement that the employer respond within five business days; requirement that the employer and employee engage in an interactive process regarding the break periods and their location; requirement of a written response identifying the basis of any denial of a request; prohibition against retaliation for exercising rights under the law. The policy must be distributed to all employees upon hiring, and offered to any employee who inquires about or requests pregnancy or parental leave. The policy must also be included in any employee handbook or set of policies.

The San Francisco law requires employers to maintain a variety of records for three years, including accommodation requests/updates (including the employee name, date of the request, and a description of how the request was resolved). The law provides that failure to keep such records will result in a presumption that the employer violated the law, absent clear and convincing evidence otherwise. The law also prohibits retaliation for engaging in protected activities under the law (including, but not limited to, requests for lactation accommodation), and establishes a rebuttable presumption of retaliation as to any adverse action taken against the employee within 90 days of such protected activity.

Employers with one or more employees working in San Francisco should work with legal counsel to update personnel policies/practice as needed to comply with these requirements on or before January 1, 2018.