Gage Dungy and Savana Manglona of Liebert Cassidy Whitmore (courtesy photos)

While lactation accommodation requirements are not new to California employers, Senate Bill 142 significantly expands an employer's obligation to provide lactation accommodations and provides new consequences for noncompliance. California employers should be aware of these new obligations to ensure their work sites are compliant by the Jan. 1, 2020, effective date.

Under current California law, employers are required to make reasonable efforts to provide a private location, other than a bathroom, in close proximity to the employee's work space for the employee to express milk in private and to provide reasonable break time to express milk. Currently, the break time "shall, if possible, run concurrently with any break time already provided to the employee." The new law also clarifies that a reasonable amount of time must be provided each time the employee has a need to express milk. 

SB 142 amends California Labor Code §1031 to require that private lactation spaces—permanent or temporary—must comply with all of the following:

• Be shielded from view and free from intrusion while the employee expresses milk;
• Be safe, clean, and free of hazardous materials;
• Contain a surface to place a breast pump and personal items;
• Contain a place to sit; and
• Have access to electricity or alternative devices (such as extension cords or charging stations) needed to operate an electric or battery-powered breast pump.

In addition, employers are required to provide access to a sink with running water and a refrigerator or cooler suitable for storing milk in close proximity to the employee's work space.  While the requirement to provide a sink and refrigerator does not necessarily require that they be provided in the lactation room, the new law is unclear whether providing these in a bathroom will satisfy this requirement. Further, if an employer designates a multipurpose room for a lactation room, then lactation purposes shall take precedence over the other uses for the room.

Employers in multiemployer work sites may comply with SB 142 by providing a shared space within the work site if the employer cannot provide a lactation location in the employer's own work space. Additionally, employers or general contractors coordinating a multiemployer work site must either provide lactation accommodations or provide a safe and secure location for subcontractor employers to provide lactation accommodation on the work site, within two business days, on written request of any subcontractor employer with an employee who requests an accommodation.

An employer with less than 50 employees may be exempt from the new accommodation requirements if they can demonstrate an undue hardship that would cause the employer significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer's business. However, while such smaller employers may be exempt from the lactation space accommodation requirements, they will still be expected to make reasonable lactation accommodations in a location other than a toilet stall.

SB 142 also requires that California employers develop and implement a policy regarding lactation accommodation requirements that include the following:

• A statement about an employee's right to request lactation accommodation;
• The process by which an employee makes the request;
• An employer's obligation to respond to the request; and
• A statement about an employee's right to file a complaint with the labor commissioner for any violation of law.

Employee handbooks and policies must include the lactation accommodation policies listed and employers should have them readily available to all employees. Employers must distribute this policy to new employees upon hire or a request for parental leave. If for some reason an employer cannot provide a break time or location that complies with the policy, the employer must provide a written response to the employee and advise employees of their right to report lactation accommodation violations.

There are consequences for employers who fail to comply with SB 142. An employer who fails to provide reasonable break time or adequate lactation accommodations may be fined $100 per day in which an employee is denied reasonable break time or adequate space to express milk. In addition, an employer who discharges, discriminates, or retaliates against an employee for exercising their rights under the lactation accommodation law is in violation of SB 142, and that employee may file a complaint with the labor commissioner as a result.

SB 142 will have a significant impact for employers who have workplace locations where there is not a dedicated space to provide lactation accommodations. Employers should conduct an audit immediately at each of their work sites to determine what potential on-site locations can be used for lactation accommodations. This may require making physical changes to the workplace in order to comply with the new requirements. Additionally, employers should begin making contingency plans to address any existing inabilities to provide such accommodations at a work site.

Gage Dungy is a partner and Savana Manglona is an associate with Liebert Cassidy Whitmore, where they provide management-side representation and legal counsel to clients in all matters pertaining to labor and employment law throughout the state of California. Dungy leads the firm's legislative tracking efforts on labor and employment law legislation. They can be reached at [email protected] and [email protected].