New California Law Mandates Enhanced Lactation Accommodations and Significant New Penalties for Employer Non-Compliance
A new California law, Senate Bill 142 (“SB 142”), effective January 1, 2020, expands on existing Labor Code requirements for employee lactation accommodations and provides significant new consequences to employers for non-compliance. Under pre-existing law (Cal. Labor Code 1030 et seq.), employers were required to make reasonable efforts to provide a private location, other than a bathroom, in close proximity to the employee’s work area, for employees to express milk in private and to provide reasonable break time to express milk.
SB 142 amends Cal. Labor Code section 1031 to require the following features for private lactation spaces:
Must 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 (e.g., extension cords or charging stations) needed to operate a breast pump.
SB 142 also requires employers to provide access to a sink with running water and a refrigerator (or cooler) to store milk, in close proximity to the employee’s workspace. Further, if a multi-purpose room is used, then lactation purposes must take precedent over the other uses.
In addition, employers in a multitenant or multiemployer worksite may comply with new lactation room requirements by providing a shared space at the worksite, if they are unable to provide lactation accommodations within their own workspace. The statute provides for further requirements for employers and general contractors to respond to subcontractor requests.
Employers with fewer than 50 employees may be exempted from a requirement specified above, if the employer can demonstrate that it would impose an undue hardship when considered in relation to the size, financial resources, nature, or structure of the business.
SB 142 also includes significant consequences for non-compliance with Cal. Labor Code sections 1030, et seq., including specifying that employees may report violations directly to the Cal. Labor Commissioner and levying a civil penalty of up to $100 per day for each day on which an employee is denied reasonable break time or adequate space to express milk. Previously, the law permitted a $100 penalty per violation.
SB 142 also states that the denial of reasonable break time or adequate space to express breast milk is deemed a failure to comply with Cal. Labor Code section 226.7, which mandates rest and recovery periods. The penalty for failure to provide such rest and recovery periods is one additional hour of pay at the regular rate of compensation for each workday a rest or recovery period is not provided.
SB 142 also prohibits discrimination or retaliation against an employee for exercising or attempting to exercise any right within Cal. Labor Code 1030 et seq.
Lastly, newly enacted Cal. Labor Code section 1034 requires employers to implement a policy regarding lactation accommodation requirements that will be distributed to new employees upon hire or a request for parental leave. The policy must, among other things, promise that the employer will respond in writing if unable to comply with an employee’s request for accommodation and advise employees of their right to report lactation accommodation violations to the Cal. Labor Commissioner.