Employment Law Alert: New California Lactation Accommodation & Policy Requirements Effective January 1, 2020

California Senate Bill 142, which becomes effective January 1, 2020, significantly expands employer obligations with respect to lactation accommodations, including more stringent requirements as to what constitutes an adequate lactation space, and imposes increased penalties for non-compliance. The law also requires employers to develop a lactation accommodation policy meeting specified requirements, and to distribute such policy to new employees upon hiring and whenever an employee makes an inquiry about or requests parental leave.   Existing California law requires every employer (regardless of size) to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time should, if possible, run concurrently with any break time already provided to the employee.   While prior California law required an employer to make “reasonable efforts” to provide the employee with the use of a room for lactation, SB 142 makes it mandatory for employers to provide a room or other location for the employee to express milk in private. The lactation room or location must not be a bathroom and must be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk. In addition, under the new law, the lactation room or location must comply with all of the following requirements:

• Be safe, clean, and free of hazardous materials, as defined in Labor Code Section 6382.
• Contain a surface to place a breast pump and personal items.
• Contain a place to sit.
• 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.

In addition, the new law requires employers to provide 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.

The law provides that the lactation room or location may include the place where the employee normally works (e.g., an employee’s office) if it otherwise meets all of the foregoing requirements. The law also provides that an employer may designate a lactation location that is temporary due to “operational, financial, or space limitations,” provided the temporary space is not a bathroom and is in close proximity to the employee’s work area, shielded from view, free from intrusion while the employee is expressing milk, and otherwise meets the requirements of the law. A multipurpose room may also be used to comply with the law’s requirements, so long as the use of the room for lactation takes precedence over other uses of the room during the time the room is in use for lactation purposes.

SB 142 provides that employers with fewer than 50 employees may be exempt from a requirement if the employer can demonstrate that a requirement would impose “undue hardship” by causing the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Employers should be mindful that “undue hardship” is generally a very difficult legal standard to meet and should consult with legal counsel to evaluate whether this exemption may apply. Under the law, even if an employer can demonstrate undue hardship, the employer must still 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.

Importantly, SB 142 imposes a new requirement for employers to develop and implement a policy regarding lactation accommodation that includes all of the following:

1. A statement about an employee’s right to request lactation accommodation.
2. The process by which the employee makes the lactation accommodation request.
3. An employer’s obligation to respond to the request and provide a written response to the employee if the employer cannot provide break time or a compliant location.
4. A statement about an employee’s right to file a complaint with the Labor Commissioner for any related violation.

The policy must be included in an employee handbook or set of policies that the employer makes available to its employees. Employers are also required to distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave. Employers are prohibited from discharging, or in any other manner discriminating or retaliating against, an employee for exercising or attempting to exercise their rights under the law.

SB 142 increases the penalties for non-compliance with an employer’s lactation accommodation obligations. Existing law subjects employers to a civil penalty of $100 per violation and authorizes the Labor Commissioner to issue citations for violations. In addition, under SB 142, a denial of a reasonable break time or adequate space to express milk would be deemed a failure to provide a rest period under Labor Code Section 226.7. As such, employers in violation of the requirements of the lactation accommodation law are subject to a penalty of one additional hour of pay at the employee’s regular rate of pay for each workday that the lactation break was not provided in accordance with the law.

We recommend that employers work with legal counsel to update their employee handbook policies and practices to comply with these requirements prior to January 1, 2020.