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Understanding Lactation Space Laws in California

According to the California Labor Code, every employer must provide reasonable accommodations and breaks to employees who need to lactate for their infant children. Presently, a lactation space must be private. However, it cannot be a toilet stall and must be in close proximity to the employee’s work area. The space can be an employee’s work area if it meets the previously mentioned criteria.

California Legislature has proposed two bills, that if signed into law, would expand California’s current law with more protections for mothers who require lactation breaks:

Assembly Bill 1976: This bill expands current law by clarifying that the lactation space must also be separate from a designated bathroom. Though a permanent lactation space is recommended, it would not be required if the employee could prove operational, financial or space limitations. A temporary space would be compliant if it were private, free from intrusion, separate from a bathroom and only used for lactation purposes. AB 1976 also outlines regulations for agricultural employers. This bill would deem an agricultural employer to be in compliance with the requirement of providing a lactation space if the agricultural employer provides an employee with a private, enclosed and shaded space, as specified. If the employer can demonstrate to the Department of Industrial Relations that this requirement would impose undue hardship, then the bill would require the employer to make reasonable efforts to provide a room or space for expressing milk that is not a toilet stall.

Senate Bill 937: This bill goes beyond AB 1976 by adding more requirements for lactation spaces. In addition to the requirements outlined in AB 1976, SB 937 states:

  • The space must be clean and safe.
  • The space must contain a place to sit.
  • The space must contain a surface to place a breast pump and other personal items, and have accommodations for an electric or battery-powered breast pump.
  • The employer must provide the employee access to a running sink and refrigerator, so the employee can store milk. If a refrigerator cannot be provided, other accommodations, such as a personal cooler, must be made.

In addition, SB 937 includes a discrimination clause, prohibiting unlawful discharge or discrimination against employees who request lactation accommodations. It would require employers to keep a record of requests for up to three years. The records must also be available to the employee and Labor Commissioner. Also, an employer would be required to develop and implement a lactation accommodation policy. The policy would be required to include a statement about employee’s rights, instructions about how to request accommodations and employer obligations.

Under current law, an employee’s lactation break should run concurrently with their allotted break time. If it does not, the employer is not required to pay the employee. This statute would not change if either proposed bill passes into law. Under each bill, including current law, an employer may be exempt to any provisions by proving undue hardship.

What can I do if my employer does not honor lactation accommodation?

If you believe your employer is not abiding by current labor codes in concern to lactation accommodations, you may file a report with the Labor Commissioner’s Bureau of Field Enforcement (BOFE). If an employer is found to be violating current accommodation law, they could receive a civil penalty of $100 or a citation from the Labor Commissioner.

If you feel you have been discriminated against by your employer, contact an experienced, workplace discrimination attorney. At Swingle, Van Egmond & Heitlinger, we can help you understand your legal rights and whether you have a viable case. Contact us today at (209) 522-2211 or fill out our online form.

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