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Lactation Accommodation: Sample Policy and Compliance Instructions

May 17, 2021 6221

All employers in California are required to reasonably accommodate all employees who want to express breast milk at work.

Employers must provide a reasonable amount of break time for employees to express breast milk and provide the use of a private place, other than a bathroom, near the employee’s work area. The employee’s normal work area can be used if it allows the employee to express milk in private.

In addition, the room must comply with the following requirements:

  • Be safe, clean and free from 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 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.

Employers must also comply with providing access to a sink with running water and a refrigerator suitable for storing milk and if a refrigerator is not feasible, the employer may provide another cooling device, such as a cooler.

Temporary or Multi-purpose Room

While there is no requirement that an employer provide a permanent location designated solely for lactation accommodation by its employees, if a temporary location is used, it’s subject to the following requirements:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations;
  • The temporary lactation location must be private and free from intrusion while an employee expresses milk;
  • The temporary lactation location must be used only for lactation purposes while an employee expresses milk; and
  • The temporary lactation location must otherwise meet the requirements of state law concerning lactation accommodation.

If the designated room has additional uses (such as an employee break room or the employer’s office), the room must remain completely private for the time it is in use for lactation purposes.

Any employer in a multi-tenant building or multi-employer worksite may comply with providing a shared space among multiple employees within the building if the employers cannot provide a compliant location within the employer’s own workspace.

Undue hardship

For employers with less than 50 employees, the law includes an undue hardship exemption regarding the location provided for lactation accommodation. This is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature or structure of the employer’s business. An employer who can demonstrate to the Department of Fair Employment and Housing that it is an undue hardship to find a location other than a bathroom (due to the size, nature or structure of the business) must instead make reasonable efforts to find a private and close location other than a toilet stall.

Use of Meal and Rest Breaks

Employees who wish to express break milk can be required to use the paid rest break time already provided by law. If the employee needs a reasonable amount of additional time for expressing milk beyond the normal paid rest break, the time must be provided, but it can be unpaid. Employees can also choose to use lunch break time to express breast milk, but this does not relieve you of your responsibility to provide reasonable additional time along with rest breaks.

The Labor Commissioner may issue a citation if you violate this law, subjecting you to a civil penalty of $100 for each violation, in addition to any fines or penalties for missed rest breaks.

Length of Accommodation

California law has no time limitation. All employers must reasonably accommodate nursing mothers if they request the accommodation, even if it’s beyond one year.

Compliance and Notification

Employers must develop a written policy in the employee manual or set of policies that:

  • Includes a statement that employees have a right to request lactation accommodation;
  • Includes instructions on how an employee requests an accommodation;
  • The employer’s responsibility to respond to the request,
  • A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the law.

Employees must provide a copy of the policy to employees upon hire, when an employee inquires or requests parental leave.

An employer who fails to comply with providing break time or an adequate lactation accommodation may be fined one hundred dollars ($100) for each day an employee is denied reasonable break time or adequate space to express milk.

Recordkeeping Requirements

All written request and denial records must be maintained for (3) three years from the date of written request.

Employers should consult legal counsel prior to claiming an undue hardship or denying an employee’s request for lactation accommodation.

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