1004 - Lactation Accommodation

Category

Equal Employment Opportunity

Audience List

• Employee Relations Officers
• Personnel Officers
• Transactions Supervisors

Synopsis

This policy

• Explains what employers are required to provide to employees for lactation accommodation.
• Provides guidance on time allotted for the purpose of expressing breast milk.
• Provides examples of appropriate workplace spaces for expressing breast milk.
• Provides the potential penalty for employers that violate the provisions of the statutes.

Introduction

The provisions in the California Labor Code sections 1030 through 1033 and of the amendments to section 7 of the Fair Labor Standards Act, brought about by the Patient Protection and Affordable Care Act in March 2010, require employers to provide reasonable lactation accommodations.

Effective January 1, 2020, SB 142 amended Labor Code sections 1030 through 1033 and added Labor Code section 1034. Labor Code section 1034 requires employers to develop and implement a policy that educates employees on their right to request lactation accommodation, including the process by which employees are able to request lactation accommodation, employer obligations to respond, and the right of employees to file a complaint with the Labor Commissioner. The employer must distribute this policy to employees upon hire and when an employee makes an inquiry about or requests parental leave. If an employer cannot provide break time or a location that complies with the policy, the employer shall provide a written response to the employee.

Statement

Employers are required to provide a reasonable amount of break time and an appropriate location to accommodate an employee desiring to express breast milk for their infant child each time the employee has a need to express milk. Departments are encouraged to be flexible, accommodating, and in compliance with current California and federal laws.

If possible, the time allotted for the purpose of expressing breast milk should run concurrently with any break time already provided to the employee. Typically, a lactating woman will need approximately 15 to 30 minutes for each session and they may occur every 2 to 3 hours. Frequency and duration will vary. While the routine break times provided may be sufficient for some women to complete the process, others may need additional time. Although law does not require employers to allow employees to extend their workday (i.e., begin work earlier or end work later) to make up for unpaid break time used for expressing breast milk, departments are encouraged to provide flexible scheduling for those employees who choose to make up for any unpaid break time.

The statutes further require employers to provide the employee with the use of a room or other location in which to express breast milk in private. The room or location must be in close proximity to the employee’s work area, other than a restroom, and must be shielded from view and free from intrusion by coworkers and the public while the employee is expressing milk. The room or location where the employee normally works may be used for this purpose if it otherwise meets 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 electricity or alternative devices, including, but not limited to, extension cords or charging stations needed to operate an electric or battery-powered breast pump.

Additionally, the employer must provide in close proximity to the employee’s workspace access to a sink with running water and a refrigerator or another cooling device suitable for storing milk, such as an employer-provided cooler.

Examples of workplace spaces which may be appropriate include a vacant office, a first aid room, a dressing room (which is not part of a restroom), or a room or office space which can be made available during specific times of the day for this purpose. To facilitate privacy, a lock may be added to the door or a sign may be posted on the entrance indicating the room is in use.

California law provides that an employer who violates the provisions of this statute may be subject to a civil penalty in the amount of $100 for each day that an employee is denied reasonable break time or adequate space to express breast milk.

Additionally, the denial of reasonable break time or adequate space is deemed a failure to comply with Labor Code section 226.7, which mandates rest and recovery periods. The penalty for failure to provide such rest and recovery periods is one additional hour of pay at the regular rate of compensation for each workday a rest or recovery period is not provided.

An employer shall not discharge, or in any other manner discriminate or retaliate against an employee for exercising or attempting to exercise any right to lactation accommodation.

Application

Departments are responsible for developing and implementing a policy regarding lactation accommodation that includes:

1. A statement about an employee’s right to request lactation accommodation.
2. The process by which the employee makes the request.
3. An employer’s obligation to respond to an employee’s request for lactation accommodation.
4. A statement about an employee’s right to file a complaint with the Labor Commissioner.

Departments shall include the policy in an employee handbook or set of policies that the employer distributes to employees upon hire as well as provide it when an employee makes an inquiry about requests for parental leave.

Departments are strongly encouraged to maintain a record of the written requests for lactation accommodation that include the name of the employee, the date of the request, and a description of how the employer resolved the request. If an employer denies a request for lactation accommodation, it must provide a written response to the employee and save the written denial.

Authorities

• California Code of Regulations, title 2, section 2626-1
• Fair Labor Standards Act section 7(r)
• Labor Code sections 1030 to 1034
• Senate Bill No. 142, chapter 720 - Employees Lactation Accommodation

Resources

Forms

• Sample Lactation Accommodation Policy for Departments: Sample Lactation Accommodation Policy for Departments

PML

• PML 2016-017: PML 2016-017 - 6/15/2016 - Lactation Accommodation

Authorized By

Melissa Russell
Chief, Personnel Management Division

Contact Person

Personnel Services Branch
Personnel Program Consultant , Personnel Services Branch
Phone: 916-909-3702
Fax: 916-327-1886
Email: psb@calhr.ca.gov

Superseded Policies

History

View History