California law has long-surpassed federal law in the area of lactation accommodation in the workplace. Senate Bill 937 (“SB 937”), if it is approved by Governor Brown, would go even further to protect the rights of employees who need to express breastmilk at work. This new legislation would also create new obligations for California employers, including a requirement that employers implement a lactation accommodation policy that meets certain specified criteria. (San Francisco enacted an ordinance with similar provisions in June 2017, which became effective on January 1, 2018.)
SB 937 has been working its way through the California Legislature since January and passed both houses as of August 29, 2018. (Note that a similar, but less far-reaching bill – Assembly Bill 1976 – has also passed in the Legislature and is awaiting a decision from Governor Brown.) SB 937 would amend three sections of the California Labor Code that address lactation accommodation (sections 1030, 1031, and 1033), and also add two new sections (sections 1034 and 1035). The new requirements, which are summarized below, would apply to all California employers, including the state and any political subdivisions.
Amended Labor Code section 1031 would require employers to provide employees who need to express milk with a space in close proximity to the employee’s work area that is shielded from view and free from intrusion while the employee is lactating. The lactation space “shall not be a bathroom” and must:
- Be safe, clean, and free of toxic and hazardous materials;
- Contain a surface where the employee can place a breast pump and personal items;
- Contain a place to sit; and
- Provide access to electricity or alternative devices needed to operate an electric or battery-powered breast pump.
The employer must also provide access to a sink with running water and a refrigerator (or other cooling device) suitable for storing milk in close proximity to the employee’s workspace.
Employers with fewer than 50 employees would be able obtain an exemption from any requirement of Section 1031 if the employer was able to demonstrate that the requirement would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business.
In addition to providing enhanced rights for employees, the new legislation would also create heightened accountability for employers. Amended Labor Code section 1033 would mandate that a denial of reasonable break time or adequate space to express milk will now be treated as a failure to provide a rest period pursuant to Labor Code section 226.7. Employers would also be explicitly prohibited from discriminating or retaliating against an employee for exercising or attempting to exercise her rights under these provisions.
New Labor Code section 1034 would require employers to develop and implement a policy describing an employee’s right to a lactation accommodation, how to request an accommodation, the employer’s obligation to respond to a request for an accommodation, and the employee’s right to file a complaint with the Labor Commissioner. Employers would also be required to maintain records of requests for lactation accommodation for three years.
Finally, new Labor Code section 1035 would require the Division of Labor Standards Enforcement to create a model lactation accommodation request form and to make it available for download from its website.
This legislation would create new rights for employees and corresponding responsibilities and obligations for employers. If the Governor signs the bill into law, employers are encouraged to consult with legal counsel to determine whether they need to take any steps to ensure compliance. LCW will continue tracking this bill and, if it is signed by Governor Brown, we will include it in our annual Legislative Roundup of new bills signed into law, which will be available later this Fall.
**Blog updated 9/5/2018 at 4:00 p.m. PST**