Requirements for Lactation Breaks: Making Accommodations for Nursing Mothers

Following laws that went into effect this year, employers must comply with legislation that imposes more rigorous standards for accommodations, trainings, procedures, etc., while the rights and protections of employees has expanded. As the law changes, employers must not only comply with new standards, but must allocate expenses in order to renovate working spaces, implement policies, and train supervisors and employees.

Assembly Bill 1976 was among the bills that went into effect at the start of 2019. The bill amends California Labor Code section 1031 and places a requirement on employers to make a reasonable effort to provide employees with a private location (other than a bathroom), in close proximity to the employee’s work area, to express breast milk for an infant child.

Additionally, an employer with a temporary lactation location is in compliance with California law if:

·       Due to operational, financial, or space limitations an employer is unable to provide a permanent lactation location;

·       The temporary lactation location is private and free from intrusion while the employee expresses milk;

·       The temporary lactation location is used only for lactation purposes while the employee expresses breast milk;

·       The temporary lactation location meets the other requirements of state law concerning accommodations.

Furthermore, AB 1976 specifies that agricultural employers must provide a private, enclosed, and shaded space, including but not limited to, an air-conditioned cab of a truck or tractor, for employees who wish to express breast milk.

This bill further provides than if an employer can establish that providing a private room other than a bathroom would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business, the employer must make reasonable efforts to provide the use of a temporary room or other location in close proximity to the employee’s work area, for the employee to express milk in private. Prior to AB 1976, employers had to only provide a private location other than a “toilet stall” for an employee who wished to express breast milk, now, AB 1976 replaced the narrow term “toilet stall” with a more general term, “bathroom.”

The author of the bill, Monique Limón, argued that AB 1976 would amend the state statute to follow the federal provisions of the Affordable Care Act (ACA) to provide a room other than a bathroom for lactating mothers. The ACA amended the Fair Labor Standards Act in 2010 to add new workplace protections for nursing mothers who were non-exempt employees and required employers to provide a location other than a bathroom, near an employer’s work area, shielded from view, and free from intrusion. The Labor Code diverges from the federal law in that it applies to all employees, and requires that employers make reasonable efforts to provide employees with the use of a room or other location.

Other Requirements Employers Should Keep In Mind

Although AB 1976 amended one section of the Labor Code, there are other provisions within the code that specify what accommodations an employer must provide.

Failure to Accommodate

If an employer fails to accommodate an employee or violates the California Labor Code lactation accommodation requirements, the employer can be penalized for every violation. Employees may file a complaint with an administrative agency or a civil lawsuit if they can establish that a violation exists. Discriminating against or failing to comply with the Labor Code can result in liability for an employer in the form of compensatory damages (i.e. unpaid wages, medical expenses), punitive damages (i.e. money to punish employer for wrongful actions), and legal expenses.

Existing Lactation Accommodation Requirements

California Labor Code section 1030 states that employers must provide employees with a reasonable amount of break time to accommodate employees who wish to express breast milk for an infant child. If possible, the break time should run concurrently with any break time that is already provided to the employee.  Additional break time would be unpaid.

While the Labor Code does not mention what length of time is a reasonable amount of break time, the United States Department of Labor stated that it typically takes fifteen (15) to twenty (20) minutes just to express breast milk, but employers must consider other factors, such as walking to the lactation space, retrieving, setting up, and cleaning the pump, storing the milk in a refrigerator, etc. All of these factors should be considered when determining the amount of time to provide for a lactation break. Reasonable Break Time for Nursing Mothers, 75 Fed. Reg.  80073, 80075 (2010).

California Labor Code section 1032 stipulates that an employer may withhold break time if allowing the employee to take a lactation break would “seriously disrupt the operations of the employer.”

California Labor Code section 1033 provides the civil penalty of $100 for each violation of the Labor Code. Further, if the Labor Commissioner determines that a violation has occurred, the Commissioner may issue a citation. The Private Attorneys General Act (PAGA) allows an aggrieved employee to recover some of the penalty.

What must employers do?

              The year 2019 came with numerous changes in employment law. It is important that employers be aware of the new requirements, and comply with the new laws in order to limit potential exposure and liability.

              To be compliant with AB 1976, employers must make reasonable efforts to provide a lactation location that is not a bathroom for employees who require a lactation accommodation. Additionally, as described more fully above, there are exceptions to this law.

              The attorneys at Palmer Kazanjian Wohl Hodson LLP can guide employers and assist in implementing policies and practices to accommodate nursing mothers to ensure compliance.