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Requirements for Lactation in the Workplace Continue to Evolve

Breast Feeding SHHHH... Door Sign

States (and cities) across the country are increasing protections for employees that are lactating. Effective January 1, 2020, a new California law amends and broadens pre-existing requirements for employers’ accommodations of lactating employees, as well as the penalties for non-compliance. The new law also requires employers to create and distribute a lactation accommodation policy.

Under existing federal law (plus the laws of many other states) employers are required to provide their employees with a private space to express milk, absent undue hardship. This space may not be a bathroom and must be shielded from both view and intrusion by other employees. Pre-existing California law also requires a reasonable amount of break time to accommodate lactation.

With the new amendments, California adds specificity to the foregoing space requirements, mandating the provision of a lactation room that: (1) is safe, clean, and free from hazardous materials; (2) contains a surface large enough to place a breast pump and personal items; (3) contains a place to sit; and (4) has extension cords or other means of electricity access. Employers must also provide lactating employees with access to a sink with running water and a refrigerator—or some other cooling device suitable for storing milk—in close proximity to their workspace. The law does provide that employers with fewer than 50 employees, which would experience an undue hardship, may be exempt from these requirements. Employers with a multipurpose room or on a multiemployer worksite should review the new language on the California Legislature’s website, here.

Employers are also required to create and distribute a lactation accommodation policy. Such a policy must address the employee’s right to request accommodation, the process by which employees make such a request, the employer’s obligation to respond to such a request, and the employee’s right to file a grievance with the California Labor Commissioner if the employer fails to comply. Once written, this policy must be distributed to new employees, when an employee makes an inquiry about or requests parental leave, and in an employee handbook (or otherwise among the employer’s policies).

California employers should take these new requirements seriously, as the civil penalty for noncompliance increased from $100 for each violation to $100 per day that an employee is denied reasonable break time or adequate space to express milk in violation of the new law. The new law also apparently provides a private cause of action to an aggrieved employee for discrimination or retaliation.

If you’re a California employer, now is the time to think about your plan for creating a compliant lactation space, before an employee requests an accommodation. And, importantly, communicating a well-thought-out plan to employees can also go a long way towards creating a general sense of cooperation and support in the workplace.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.