Under California law, what must an employer do to accommodate lactating employees in the workplace?

Pursuant to California Labor Code Sections 1030-1034, every employer, including the state and any political subdivision, must provide a reasonable amount of break time to accommodate an employee needing to express breast milk for the employee's infant child. The break time must, if possible, run concurrently with any break time already provided to the employee. Break time that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission need not be paid. An employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.

Employers must also make reasonable efforts to provide lactating employees with the use of a room or other location, other than a bathroom, in close proximity to the employee's work area for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the above requirements. A temporary location is acceptable if the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations. A temporary lactation location must be private and free from intrusion and used only for lactation purposes while an employee expresses milk.

The lactation room or location must include a surface to place a breast pump and personal items, a place to sit, access to electricity, a sink with running water, and a refrigerator or cooler for storing breast milk. In addition, the room or location must be safe, clean and free of hazardous materials. Employers must create a written lactation accommodation policy that is provided to employees upon hire, included in an employee handbook and given to any employee who inquires about or requests parental leave. See Senate Bill No. 142.

Employers covered by the Fair Labor Standards Act (FLSA) must also comply with the federal law. The FLSA requires employers to provide unpaid, reasonable break time for an employee to express breast milk for a year after birthing a child. Employers must also provide a private place other than a bathroom where the employee can express breast milk. Employers with fewer than 50 employees may be exempt if these requirements would impose undue hardship by causing the employer significant difficulty or expense when considered in relations to the size, financial resources, nature or structure of the employer's business. See Break Time for Nursing Mothers under the FLSA.

Breastfeeding Discrimination

California Assembly Bill 2386 amended the statutory definition of sex under the California Fair Employment and Housing Act (FEHA). This bill prevents breastfeeding discrimination in the workplace. Although the California Labor Code already requires employers to provide accommodations for women who are breastfeeding, this law goes a step further by providing additional recourse for women who have encountered breastfeeding discrimination.