SB 142: Expanded Lactation Accommodation Requirements for Employees

SB 142: amends Sections 1030, 1031 and 1033 of the California Labor Code and adds a new Section 1034. In general, these changes now require all employers to provide an employee a break to express breast milk for the employee's infant child each time they need to express milk. The breaks may run concurrently with any break already provided to the employee, but any such breaks that do not run concurrently with another break may be unpaid. To accommodate such breaks, employers must provide the employee with a clean and safe room or other location to express milk in private that is close to the employee's work area. The room or location must satisfy certain conditions, including 1) contain a surface to place a breast pump and personal items; 2) contain a place to sit; and 3) have access to electricity or another device that enables the use of an electric or battery-powered breast pump. The room cannot be a bathroom. In addition, employers must provide access to a sink with running water and a refrigerator suitable for storing milk (or, if a refrigerator cannot be provided, some other suitable cooling device) that is close to the employee's workspace. Multiple employers in the same building can provide a shared space within the building/worksite if an employer cannot provide a lactation location within the employer's own workspace.

Failure to comply with the new Labor Code requirements constitutes a violation of Labor Code Section 226.7, which requires the employer to pay the employee one additional hour of pay at the employee's regular rate of pay for each workday that an accommodating break period is not provided. In addition, an employee may file a complaint under Labor Code Section 98 for employer violations of the new Labor Code requirements. Employers are prohibited from discharging or in any way retaliating against an employee for exercising or attempting to exercise rights under the new Labor Code requirements. If the Labor Commissioner determines that a violation of the requirements has occurred, the Labor Commissioner may impose a penalty of $100 for each day an employee is denied reasonable break time or an adequate space to express milk.

Under new Labor Code Section 1034, employers must also develop and implement a policy regarding lactation accommodation that includes, in part, 1) a statement about the employee's right to request lactation accommodation and the process to make such a request, and 2) a statement about the employee's right to file a complaint with the Labor Commissioner for any violation of such right. The policy must be provided in the employee handbook or set of policies the employer provides to employees.

Employers with fewer than 50 employees may qualify for an exemption if it can demonstrate that complying with the requirement would impose an undue hardship, but the employer must still make reasonable efforts to provide employees with a room or other location to express milk in private.