California employers are already required to provide non-exempt employees with a reasonable amount of break time to express milk for their infants in a “private place.” And fortunately for the infants consuming that milk, the “private place” cannot be a bathroom. Effective January 1, 2020, however, California will take the duty to accommodate nursing mothers several steps further by requiring that:
- The lactation room must contain certain features, like it be clean, safe and have a place to sit, a surface on which to place personal items, and access to a nearby power outlet, sink and refrigerator;
- Employers may not discharge, otherwise discriminate or retaliate against employees for exercising (or attempting to exercise) their rights under the law, and employees may file a complaint with the Labor Commission if the employer violates that obligation or denies reasonable break time;
- Employers must develop and implement a policy on lactation accommodation that includes:
- A statement about an employee’s right to request lactation accommodation;
- The process by which an employee makes the request to use reasonable break time for lactation;
- The 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 a right to lactation accommodation.
- Employers must include that Lactation Accommodation Policy in its employee handbook or set of policies that they make available to employees, and give a copy to new hires and employees who inquire about parental leave.
One caveat is that, for employers with fewer than 50 employees, they may demonstrate that complying with these requirements would impose an “undue hardship.” Even then, however, the employer must still make reasonable efforts to provide the use of a nearby room, other than a toilet stall, where the employee can express milk in private.
The penalty for denying reasonable break time or adequate space to express milk it $100 per day for each day the employer is in violation. Obviously, that penalty could add up quickly, particularly if there are numerous nursing mothers on staff, so we strongly recommend that California employers make sure that they are in compliance by the new year.