California Governor Gavin Newsom recently signed into law SB 142, significantly expanding employers' obligations to provide break time and lactation room accommodations for working mothers. Following in the footsteps of San Francisco's Lactation in the Workplace Ordinance, SB 142 imposes a host of new requirements regarding lactation accommodation spaces, policies, and break time:
- Not Just Any Room. Under current California law, employers are required to make reasonable efforts to provide lactating employees with a room or location (other than a bathroom) close to the employee's work area to express breast milk in private. SB 142 expands these protections, requiring that the lactation room also (1) be shielded from view and free from intrusion while the employee is lactating; (2) be safe, clean, and free of hazardous materials; (3) contain a surface on which to place a breast pump and personal items; (4) contain a place to sit; and (5) have access to electricity or alternative devices, such as extension cords or charging stations, needed to operate an electric or battery-powered breast pump. Employers must also provide access to a sink with running water and a refrigerator or other cooling device for storing milk near the employee's workplace. SB 142 further provides that, where a lactation room also is used for other purposes, lactation must take precedence over other uses during the time in which an employee is using it for lactation purposes.
- Detailed Policy Requirements. An entirely new requirement under SB 142 is that employers must develop and implement a lactation accommodation policy that includes: (1) a statement about the right to request lactation accommodation; (2) the process by which an employee makes the request; (3) an employer's obligation to respond to the request; and (4) a statement about an employee's right to file a Labor Commissioner complaint for violations of the law. Employers must include the lactation policy in an employee handbook or set of policies that the employer makes available to all employees. Employers also must distribute the policy to new employees upon hire and when an employee inquires into or requests parental leave.
- Breaks Whenever Needed. Under existing law, lactation breaks shall, if possible, run concurrently with any break time already provided to the employee. SB 142 expands this, requiring that breaks be provided "each time" a lactating employee "has need to express milk."
Fear not, the new law has several exceptions. Companies with fewer than 50 employees are exempt from lactation room requirements if they can show that complying with the law would cause an undue hardship. Employers in a multitenant building or multiemployer worksite that cannot provide a lactation location within their own workspace may utilize a shared space within the building. Employers that share a multiemployer worksite also have a two-day grace period to provide lactation accommodations for subcontractor employers so that they may provide lactation accommodations at the worksite. Likewise, employers experiencing operational, financial, or space limitations may comply with the new requirements by designating a temporary lactation location.
SB 142 takes effect on January 1, 2020. Denial of a lactation break or room will constitute a violation of California Labor Code Section 226.7 (rest breaks) and will carry a civil penalty of $100 per violation, making lactation accommodations a likely target for the plaintiffs' bar, including in Private Attorney General Act actions. With only two months left become the law takes effect, employers should update their policies and new hire packets and assess what other steps they may need to take to ensure compliance.
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