The American Academy of Pediatrics recommends that infants be exclusively breastfed for the first six months of their lives. Per the last CDC Breastfeeding Report Card, only 57.6% are breastfed to this point and only 25% of them only receive breast milk. Many infants are given solid foods earlier than recommended. Why? Many moms return to work long before their child reaches six months of age. You can go back to work and still get to exclusively breastfeed by pumping your milk into bottles when you’re at work.
Federal laws require employers to provide nursing moms with a place to pump breast milk for one year after the baby’s birth. That place must be in a private location that other employees or visitors/public guests cannot access. It cannot be a bathroom or a bathroom stall. In addition, nursing moms must be given time to express milk during the workday. Those breaks must be paid if other employees are paid for similar breaks. There is an exception to the break time rule. If a small business with fewer than 50 employees would face difficulty giving the nursing mom a break, they are exempt from parts of the lactation rules.
Some states follow federal laws. Others, like California, set their own lactation laws that build upon federal laws. It’s important to understand what California’s lactation laws cover and what the changes made in 2020 mean to employees and their employers.
California Senate Bill 142
When Governor Newsom signed SB 142 into law in October of 2019, it changed several aspects of the current breastfeeding laws and penalties. The new rules came into effect on January 1st. A written policy for breastfeeding mothers must be provided now. The business must put policies in place for requesting lactation accommodations, how the supervisor/management should respond to the request, and what an employee should do if her request is not met. This employment handbook must be made available to new hires and when employees ask about parental leave. Here are some of the changes that the 2020 lactation law makes.
#1 – No Limits on How Long a Woman is Entitled to Private Lactation Space
One difference with the new 2020 lactation laws in California is that there is no time limit. If a nursing mom is still pumping breast milk two years later, the company must accommodate her. While the federal rule covers a mom for one year, California has no restriction in terms of time. If you’re breastfeeding your child still and need to pump, you can do so whether your child is a year, two years, three years, or older than that.
#2 – The Room Cannot Be a Bathroom and Must Meet Certain Standards
One of the rules enhanced what type of room can be used for breastfeeding. It can be temporarily designated as a lactation room, but it has to have a sink and refrigerator, and the sink must have running water. The room has to be spacious enough to house a table or desk that’s large enough for the mother’s personal items and breast pump. It has to have a seat and power outlets and any extension cords that may be necessary for an electric breast pump. If it is deemed that this room will be temporarily used for lactation, it must be due to space limitations, financial reasons, or operational issues. It still has to be private and free of intrusions.
#3 – The Room Cannot Ignore Labor Codes Regarding Safety and Privacy
Most importantly, the room must be free of any hazardous materials and be kept clean. Hazardous materials include chemicals and cleaners, but it also includes substances that qualify as being carcinogens. This means that setting up a lactation area in a janitorial closet may not be acceptable. The room that’s chosen as a lactation room cannot be accessed by others while in use. Setting up a nursing mom in a copier or supply room that employees are in and out of all day may not be suitable due to the need to access the supplies within.
Employers could choose to have a break room used as a lactation room, but when a nursing mother needs to express milk, others must stay out until she’s finished. As per the federal laws, a bathroom is not an allowable lactation room. Ideally, the room should be near the mom’s workspace.
#4 – Understanding the Undue Hardship Exemption
In a company with less than 50 employees, the new lactation regulations can be bypassed if an employer can prove the change causes undue hardship. The important term here is “undue hardship.” It can be hard to argue this if you’re mistaking hardship for inconvenience. By definition, undue hardship is “an action requiring significant expense or difficulty.”
If you have to build an expansion on your business, that may qualify as undue hardship. If you have two rooms used for breaks, one should be redesigned and used as a lactation room while the other becomes the only break room. That may be inconvenient, but it’s not going to meet the definition of undue hardship. It is up to the employer to try his or her hardest to come up with a room that meets the new requirements.
#5 – Increased Fines
If an employer violates this and doesn’t allow a new mom space or time to express her milk, a warning may be issued first. If the employer still fails to comply with the law change, the fine is $100 per day plus any fines for not allowing rest or meal breaks. Any requests or denials that are made by a company must be recorded and kept on file for three years from the date of the request.
There is an alternative worth looking at if you rent space in a large building. If that small business is part of a multi-tenant building, different companies could work together and create one shared space for several of the employees to use as a lactation room.
Should an employer deny a request unjustly, the nursing mother has the right to file a complaint. If an employer refuses to set up a lactation space, refuses to allow her adequate breaks, or threatens action against her for asking for time/space to express her milk, she is entitled to file a complaint. The same protections regarding retaliation apply to the mother. If an employer retaliates against her for filing a complaint, this is a violation of her rights and can lead to additional penalties and harassment lawsuits.
What If Your Rights Are Being Violated?
If you’ve asked for space to express your milk and have been denied, refer to your employee handbook for instructions on what to do next. If you’ve met the requirements for submitting your request and are still having issues, talk to whoever is designated as the person to contact. If there is no one or that person doesn’t respond appropriately, seek legal advice. You should also talk to an employment attorney if you’re being harassed or discriminated against after making a request.
Keep copies of all denials or jot down verbal denials in a notebook. Note dates and times and give details about your request. Make sure you have a copy of your employee handbook and mark sections on the company’s lactation policy. It will be easier for an attorney to help you with the next steps to take if there is strong evidence that your rights are being denied.
Breastfeeding should be a natural, loving act. It’s not something that you should be ashamed of at work, and that’s the goal of the 2020 California lactation law changes. If you are concerned that your rights to a private, equipped space for expressing your milk are being violated, call Shegerian Conniff LLP. Our attorneys excel at employment law and making sure your rights as a nursing mother are not violated. Consultations are free and available when it’s convenient for you. Call us to learn more.