California employers should be aware of a change in our state’s lactation accommodation law as of January 1. Previously, an employer could satisfy the requirement for a private room for breastfeeding mothers to express milk so long as the room was not a “toilet stall.”
To prevent employers from using bathroom areas outside of stalls as designated areas to express breast milk, the legislature amended the law in AB 1976 to say the location must be one “other than a bathroom.”
California employers must provide reasonable break time for expressing breast milk. The break time shall, if possible, run concurrently with the employee’s regular break time. Otherwise, the separate lactation break may be unpaid.
The “room or other location” must be close to the mother’s work area and private. It may even include the place where the employee normally works.
The law makes other provisions for agricultural employers.
If the employer cannot create a permanent lactation space “because of operational, financial, or space limitations,” a temporary location is acceptable so long as it is private and “free from intrusion” during the time the employee is using it to express milk, it is used only for lactation purposes while an employee expresses milk, and it meets all other legal requirements for lactation accommodation.
If an employer can demonstrate that complying with the lactation location requirements would cause “undue hardship when considered in relation to the size, nature, or structure of the employer’s business,” a location other than a “toilet stall” will suffice if it is in close proximity to the employee’s work area. Presumably, this means that undue hardship would allow the employer to designate another area of the bathroom outside of the stall.
Finally, the employer is not required to provide break time for lactation if to do so would seriously disrupt the operations of the employer.
Consequences of non-compliance with the California lactation accommodation law
It is a good idea for all employers in the state to get legal advice about how to comply with this law. Significantly, it applies to all private employers of any size, not just larger ones, as well as to state and local government employers.
The state Labor Commissioner can investigate or inspect for violation of the law and may issue a $100 citation for each violation. And, employees who are victims of retaliation for asserting their rights to a lactation accommodation may file a retaliation claim with the Labor Commissioner’s office.
The attorneys at Duggan Law Corporation are available to help employers to comply with California’s lactation accommodation law.