Employment Law Bulletin | November 2019
New Law Expands Lactation Accommodation Requirements and Opportunity for Employee Claims
Governor Newsom recently approved SB 142, a bill that substantially expands California’s lactation accommodation law starting January 1, 2020. Prior to 2018, employers were required to provide a private space, other than a toilet, for employees to express milk. That law was later modified to ensure that lactation spaces were located outside of the restroom. Now, with SB 142, all California employers (with some limited exceptions discussed below) must provide a private place, other than a restroom, that also meets the following additional criteria:
- close proximity to the employee’s work area, shielded from view, and free from intrusion;
- safe, clean, and free of hazardous materials;
- contains a surface to place a breast pump and personal items and has a place to sit; and
- has 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.
Employers must now also provide employees with access to a sink with running water and a refrigerator (or if unavailable, a cooler) suitable for storing milk in close proximity to the employee’s workspace.
SB 142 includes a few exceptions for particular employers who might find meeting the requirements of the new law challenging. For example, agricultural employers can comply by providing a private, enclosed and shaded space, such as an air-conditioned cab of a truck or tractor.
Employers with less than 50 employees are also given some leeway. If an employer with less than 50 employees can show that a certain requirement would cause an undue hardship either because it is significantly difficult to achieve or too expensive, the employer may be excused from having to meet that requirement. However, these employers must still make reasonable efforts to provide employees with a space that is not a toilet stall and is in close proximity to the employee’s work area regardless of the hardship caused. For these employers, a restroom could be an approved lactation space, but we only recommend this if it is the only option available.
In addition to addressing the specifics of lactation room requirements, SB 142 also contains obligations related to lactation accommodation policies. Specifically, all employers must develop and implement a lactation accommodation policy that includes all of the following elements:
- a statement about an employee’s right to request lactation accommodation;
- the process by which the employee can make a request for lactation accommodation;
- information regarding an employer’s obligation to respond to the request; and
- a statement that the employee has the right to file a complaint with the Labor Commissioner for any violation of the lactation accommodation law.
The policy must either be included in an employee handbook or in the place where other employee-related policies are located. Employers must also distribute their lactation accommodation policy to each new employee upon hire and to any employee who makes an inquiry about or requests pregnancy disability or parental leave.
Finally, SB 142 carries teeth to ensure it is taken seriously. Under the new law, it is illegal for an employer to discriminate or retaliate against an employee for exercising or attempting to exercise the right to request a lactation accommodation. Further, denying an employee reasonable break time or an adequate space to express milk is deemed to be a failure to provide a rest break, which means employees will now have an additional basis to claim missed rest break premium pay or to recover rest break penalties if the employee files a claim with the Labor Commissioner.
If you have concerns about your ability to meet the lactation accommodation requirements under SB 142 or you need assistance with updating your policy in order to make it legally compliant for 2020, please contact an SMT attorney.
Kari Brown
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Spaulding McCullough & Tansil LLP
Employment Law Group
