Are your lactation accommodations compliant?

California Labor Code Section 1030 requires every employer to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child and establishes the type of location required.  But how does an employer comply with these requirements when the employee requesting the accommodation does not work on the employer’s premises?

1. Establish a policy and procedure for requesting an accommodation.
Communicate to your employees the Company’s policy supporting the need for lactation accommodation and the procedure required to request an accommodation.  Do not leave it up to your supervisors alone to handle this issue, or if you do, make sure they are trained on how to handle the request and how to make an accommodation.  You may not require a doctor’s note or any other medical documentation.

2. Ensure proper break time.
The break time to express breast milk should run concurrently with any break time already provided to the employee. Rest breaks must be provided for a “net” ten minutes twice in an 8 hour shift, which should occur before and after a meal period.  An employer must provide additional time if the employee requests it, but that break time will be unpaid. Please note that an employer is not required to provide an employee break time for purposes of lactating if to do so would seriously disrupt the operations of the employer.  It is recommended that an employer be very cautious about denying this accommodation.

While the new substance like Tadalafil is as of now known and has been altogether tried and assessed, a nonexclusive still should be affirmed by the FDA. It is difficult and not modest to bring into the market another nonexclusive lawfully.

3.  Designate a location for lactation at the employee’s assigned site.*
You will need to review the work site and you may need to have a discussion with the client to determine how best to comply with the legal requirements.  If the site does not have a permanent, designated lactation area, you will need to establish a temporary location.  You will need a room or other location, other than a bathroom, in close proximity to the employee’s work area, for the employee to express milk in private, which means free from intrusion. It may include the place where the employee normally works if it can meet the privacy requirement. Although the law does not require a lock on the door, it is recommended because a sign could be ignored.  A private office or a conference room may be used as long as it is private and the employee is not interrupted.  Individual stand-alone lactation pods are now on the market and may provide another option if it is difficult to establish a private place in the workplace.

A car is not considered an appropriate location for privacy reasons, even if it is the employee’s car. The windows would allow others to look in and it would not have an electrical outlet required for pumping.  Also, you cannot ask the employee to go home, even if the employee lives close to the work site, as it would not satisfy the requirement of close proximity to the employee’s work area, which is considered generally to be on the same floor, in the same building, etc.

As a last resort, if due to the size, nature and structure of your business, it is an undue hardship to have another location (which you will need to prove), a bathroom can be used, as long as it is not a bathroom stall, and there is a private sitting area.  Alternatively, and again as a very last resort, you can offer the employee the opportunity to transfer to another site that has the ability to accommodate lactation, but at no loss of any kind to the employee.

Be reasonable and conservative in your approach with dealing with lactation accommodation.  The California Labor Commissioner may issue a citation and impose a $100 civil penalty for each violation, but more importantly, an employee can bring a claim of discrimination if an accommodation is not provided.  For further guidance on this or any other employment issue, contact the attorneys at Bradley & Gmelich, LLP.

*Please note the City of San Francisco has a Lactation in the Workplace Ordinance that has additional requirements.

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