Governor Gavin Newsome has signed SB 142 into law, which amends Labor Code sections 1030 and 1033 and adds section 1034 pertaining to an employer’s duty to accommodate lactating parents with regards to time and location. California’s Lactation Accommodation law requires employers to develop and implement a lactation accommodation policy complaint with SB 142, including the employee’s right to file a complaint with the Labor Commissioner. The new law goes into effect January 1, 2020.

Reasonable Amount of Time

A reasonable amount of time must be provided each time the employee has a need to express milk. As before, break time must, if possible, run concurrently with any break period already provided to the employee such as during the employee’s rest and meal periods. However, lactation break time for an employee that does not run concurrently “with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.”

Providing a Location

An employer must now provide a location for lactation that is in close proximity to the employee’s work area, shielded from view and free from intrusion, while the employee is expressing milk. The law was also amended to include a list of requirements for the location, which must:

• Be safe, clean, and free of hazardous materials, as defined in Labor Code Section 6382 relating to hazardous substances.
• Contain a surface to place a breast pump and personal items.
• Contain a place to sit.
• Have 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.

The employer must also provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace. If a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.

Where a multipurpose room is used for lactation, among other uses, the use of the room for lactation must take precedence over the other uses, but only for the time it is in use for lactation purposes.

Employers in multiemployer worksites have the following options:

• They may comply by providing a space shared among multiple employers within the building or worksite if the employer cannot provide a lactation location within the employer’s own workspace.
• Employers or general contractors coordinating a multiemployer worksite must either provide lactation accommodations or provide a safe and secure location for a subcontractor employer to provide lactation accommodations on the worksite, within two business days, upon written request of any subcontractor employer with an employee that requests an accommodation.

Temporary locations are no longer acceptable unless the temporary nature is due to “operational, financial, or space limitations.”  These temporary spaces cannot be a bathroom or toilet stall and must be in close proximity to the employee’s work area, shielded from view, free from intrusion while the employee is expressing milk, and otherwise compliant with Labor Code 1030.

Limited Exception Relating to the Location for Lactation

SB 142 provides a limited exception to the requirement that an employer provide a room to lactate. An employer that employs fewer than 50 employees may be exempt from the new accommodation requirement if it can demonstrate that the new requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. If the employer can demonstrates that providing an employee with the use of a room or other location imposes an undue hardship, the employer must make reasonable efforts to provide the employee with the use of another private room or location that is not a bathroom or toilet stall in close proximity to the employee’s work area.

Violations

SB 142 also amended Labor Code 1033 regarding penalties. The aggrieved employee can file a complaint with the Labor Commissioner, who has the authority to issue a citation and impose a civil penalty, pursuant to Labor Code 98. The penalty is $100 for each day that an employee is denied reasonable break time or adequate space to express milk. The procedures to issue, contest and enforce judgments are set forth in Labor Code 1197.1.

New Written Policy Requirement

An employer must develop and implement a policy regarding lactation accommodation that includes the following:

• A statement about an employee’s right to request lactation accommodation.
• The process by which the employee makes the request.
• An employer’s obligation to respond to the request.
• A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of an employee’s right to lactation accommodations.

The lactation accommodation must appear in either the employee handbook or a set of policies that the employer makes available to employees. The policy must be provided to 1) new hires and 2) when an employee makes an inquiry about or requests parental leave.

Additionally, if an employer cannot provide break time or a location that complies with the written policy, the employer must provide a written response to the employee.

The text of SB 142 can be found here.

Takeaways for California Employers

Revise Handbook. Handbooks are tedious documents to review; however, SB 142 underscores the importance of updating policies on an annual basis. There are several handbook providers, however, we recommend submitting your handbook for review to an employment attorney. Employment attorneys should analyze policy language with the intent to reduce an employer’s risk of litigation. Employers with Employment Practices Liability Policies may need their insurance carrier to approve handbook or other employee policy changes.

Begin Scouting Possible Lactation Rooms. Employers will need to provide a lactation location at each worksite. Do not wait until an employee requests or needs a lactation accommodation.

Consult with Employment Counsel. Employers with 50 or fewer employees that cannot provide a permanent room for lactating purposes should consult with legal counsel to determine if the employer can prove “undue hardship” exists.

Train Supervisors/HR Personnel. Consider training employees on how to respond to employee requests. Some requests may be specific while some employees may generally inquire about baby-bonding leave or time off to have a baby. In both cases, SB 142 imposes requirements on employers.

More Information: This and other new California laws for employers will be discussed at our upcoming 2020 Employment Law Update for California Employers on December 3, 2019. For more information on these and other events, visit our Events Page.