On October 10, 2019, Governor Gavin Newsom signed SB 142 into law, which expands California employers’ obligations to accommodate employees who need to express breastmilk during the workday, most notably by adding a number of new requirements for the lactation space itself. The bill also establishes significant penalties for employers that fail to comply with the new requirements.
What Are Employers’ New Obligations?
Effective January 1, 2020, California employers will be required to provide the following (in addition to existing lactation accommodation requirements):
- Upgrades to the Lactation Room
Employers are already required to make “reasonable efforts” to provide employees with a place to express breast milk in private that is not a bathroom and is in close proximity to the employee’s work area. Under SB 142, the space provided must also:
— Be shielded from view and free from intrusion while the employee is lactating;
— 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, including, but not limited to, extension cords or charging stations needed to operate an electric or battery-powered breast pump.
Additionally, if a room is used for both lactation and other purposes, lactation shall take precedence over the other uses, but only for the time it is being used for lactation purposes.
- Access to a Sink and Refrigeration
Employers must provide access to a sink with running water and a refrigerator suitable for storing milk (or another cooling device) in close proximity to the employee’s workplace.
- Additional Break Time
Employers are currently required to provide a reasonable amount of break time to allow employees to express breast milk. Under SB 142, employers must provide such break time “each time such employee has need to express milk.”
- Lactation Accommodation Policy
SB 142 also requires employers to develop and implement a lactation accommodation policy that includes:
— A statement that employees have the right to request lactation accommodation;
— The process by which an employee may make a request for lactation accommodation;
— A statement of the employer’s obligation to respond to the employee’s request; and
— A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the law.
Employers must include the lactation policy in an employee handbook or set of policies that the employer makes available to employees. Employers must distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave.
Do Each of These Requirements Apply to All Employers?
No. For instance, an employer with fewer than 50 employees may establish an exemption from any of the lactation room requirements if it can show that the requirement(s) would impose an undue hardship in light of the size, financial resources, nature, or structure of the employer’s business.
What Are the Consequences for Employers that Do Not Comply with the New Requirements Under SB 142?
Employers that deny an employee reasonable break time or adequate space to express breast milk will be deemed to have violated Labor Code Section 226.7 and will owe the same penalties as employers that fail to provide employees with proper meal and rest periods.
Specifically, the employer will be required to pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that break time or adequate space to express milk is not provided. On top of that, the Labor Commissioner may impose a civil penalty of $100 for each day the employee is denied break time or adequate space to express milk.
You can read the text of SB 142 here.