Update 10/10/2019: Governor Newsom signed SB 142 into law today.

On September 11, 2019, the California Legislature passed Senate Bill 142 (“SB 142”), which would significantly expand lactation accommodations and protections for working mothers. Among other things, SB 142 would: (1) clarify employer obligations to provide breaks to nursing/pumping mothers; (2) require employers to provide safe and sanitary lactation rooms for employees wishing to express milk; (3) increase penalties for non-compliance; (4) prohibit discrimination and retaliation against employees who exercise or attempt to exercise their right to lactation accommodations; and (5) require that employers implement lactation accommodation policies.

SB 142 comes on the heels of last year’s Assembly Bill 1976 (“AB 1976”). AB 1976 required that employers “make reasonable efforts” to provide a lactation room other than a bathroom. Under SB 142, employers must provide such a room, subject to a limited undue hardship exemption.[1]

Given Governor Gavin Newsom’s support for the expansion of paid family leave from six weeks to eight weeks, and his championing of increased worker protections, we are optimistic that he will sign SB 142 into law.

WHAT DOES SB 142 DO?

SB 142, introduced by Senator Scott Weiner (D-San Francisco) and principally co-authored by Assemblymember Lorena Gonzalez (D-San Diego), amends Labor Code sections 1030, 1031, and 1033 and adds section 1034. The amendments and additions, which are discussed below, significantly expand lactation accommodations and protections for working mothers.

      1.       Clarifies employer obligations to provide breaks

The bill amends section 1030 to clarify that employers must provide a reasonable amount of break time to accommodate an employee desiring to express milk for her infant “each time the employee has need to express milk.” [2] If possible, the employee should take breaks at times that she is already provided; additional break time will be unpaid.

      2.       Sets standards for safe and sanitary lactation rooms

SB 142 amends section 1031 to require that employer’s “provide an employee with the use of a room or other location for the employee to express milk in private.”[3] This amendment is significant because section 1031 currently only requires that an employer “make reasonable efforts” to provide such a room.[4]

Under SB 142, employers must provide a room that is not a bathroom, and is close to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk. In addition, it must:

(1) Be safe, clean, and free of hazardous materials….

(2) Contain a surface to place a breast pump and personal items.

(3) Contain a place to sit.

(4) Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.

The employer shall provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace. If a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.[5]

The bill also explores certain non-traditional work environments: Employers in multitenant buildings or multiemployer worksites can meet the above obligations by providing a shared space within the building or worksite “if the employer cannot provide a lactation location within the employer’s own workspace.”[6] In addition, employers or general contractors that coordinate multiemployer worksites must provide a “safe and secure location for a subcontractor employer to provide lactation accommodations on the worksite, within two business days, upon written request of any subcontractor employer with an employee that requests an accommodation.”[7]

Employers that are restricted due to “operational, financial, or space limitations” can comply with their obligations by designating a lactation location that is temporary, so long as it is not a bathroom, and is close to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk.[8]

      3.       Increases penalties for non-compliance

The bill’s amendments to section 1033 are designed to give the statute teeth. Whereas the current version of section 1033 merely provides for a civil penalty of $100 per violation, SB 142 would deem an employer’s “denial of reasonable break time or adequate space to express milk” a “failure to comply for purposes of section 266.7”–the section of the Labor Code that provides for penalties for failure to provide meal and rest breaks.[9] This is significant because an employer’s violation of its obligation to accommodate lactation requests would result in a penalty of one additional hour’s pay “at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.”[10] An “aggrieved employee” would be able to file a complaint with the Labor Commissioner pursuant to section 98.[11]

      4.       Increases discrimination and retaliation protections

SB 142 would provide additional protections from discrimination and retaliation for workers seeking lactation accommodations by adding the following language to section 1033: “An employer shall not discharge, or in any other manner discriminate or retaliate against, an employee for exercising or attempting to exercise any right protected under this chapter.”[12]

      5.       Requires the creation of lactation accommodation policies

SB 142 would add section 1034 to the Labor Code, which would require employers to “develop and implement a policy regarding lactation accommodation.”[13] The policy must include a statement advising employees of their right to request lactation accommodation, the process for requesting accommodation, the employer’s obligations, and a statement advising employees of their right to file a complaint with the Labor Commissioner for any related violations.[14] Section 1034 would require that such a policy be disseminated in an employee handbook or set of policies and distributed to new employees upon hiring and when an employee inquires about or requests parental leave.[15] Section 1034 would also require that any employer that denies a compliant lactation break time or location provide their response to the employee in writing.[16]

ARE ANY EMPLOYERS EXEMPT FROM SB 142?

All employers are required to provide reasonable break time to allow employees to express breast milk for their infant children. All employers are prohibited from discriminating or retaliating against an employee for exercising their rights. And all employers must create compliant policies.

However, with respect to the lactation room requirements, employers with fewer than 50 employees that can establish that complying with specific requirements of section 1031 would impose an undue hardship are exempt from those specific requirements only. Subdivision (i) of section 1031 specifically states:

“An employer that employs fewer than 50 employees may be exempt from a requirement of this section if it can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. If that employer can demonstrate that the requirement to provide an employee with the use of a room or other location, other than a bathroom, would impose such undue hardship, the employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”[17]

CONCLUSION

Many working mothers are forced to stop breastfeeding their babies because of the challenges of pumping at work.[18] They simply do not have the lactation accommodations and support they need. SB 142 will go a long way in addressing the problem. As its author Senator Scott Weiner explains:

“If we’re serious about gender equity in the workplace—as we should be—we need to make it much easier for women to return to work after having a child . . . [f]amily-friendly workplaces increase gender equity, improve families’ health, and are good for business. Inadequate lactation accommodations often lead women, especially low-income workers, to make the difficult decision to leave their jobs or to pay for expensive formula. Providing a safe and comfortable place for women to lactate will keep infants and women healthier, and keep more women in the workforce.”

It is not surprise, then, that SB 142 has broad-based support from organizations such as the California Breastfeeding Coalition, Legal Aid at Work, the American Congress of Obstetricians & Gynecologists – District IX, and the California Employment Lawyers Association. We fully support its passage.

* * *

Written by Ramit Mizrahi, Esq. and John L. Schwab, Esq.

[1] Compare AB 1976 § 1031(a) with SB 142 § 1031(a) (emphasis added).
[2] See SB 142, § 1030.
[3] See id. at § 1031.
[4] See Cal. Lab. Code § 1031(a).
[5] See SB 142, § 1031(c)-(d).
[6] Id. at subd. (f)(1).
[7] Id. at subd. (f)(2).
[8] Id. at subd. (h).
[9] Compare Cal. Lab. Code § 1033(a) with SB 142 § 1033(a); see also Cal. Lab. Code § 226.7.
[10] See Cal. Lab. Code § 226.7(c) (emphasis added).
[11] See SB 142, § 1033(a).
[12] Id. at subd. (b).
[13] See SB 142, § 1034(a).
[14] Id. at subsecs. (1)-(4).
[15] Id. at subds. (b)-(c).
[16] Id. at subd. (d).
[17] See id. at § 1031(i).
[18] See Sen. Comm. on Labor, Public Employment and Retirement, Analysis of SB 142, p. 3.