Working moms face tough decisions following the birth of a child, including whether to go back to work after having a baby, how soon to go back, and whether to continue breastfeeding once she’s back at work. Often, her employer’s provision of the time and a place suitable for expressing breast milk may impact those decisions. In addition to federal law, many states have laws in place that give nursing mothers the assurance that an appropriate place and time for expressing breast milk will be provided by their employers. California, in particular, has been a leader in the evolution of lactation accommodation law.
Federal Break Time for Nursing Mothers
Most employers are required by the federal Fair Labor Standards Act [29 U.S.C. 207(r)] to provide nursing employees with “reasonable,” unpaid break time to express breast milk each time the employee needs to express breast milk, for up to one year after the birth of a child. Federal law requires employers to provide such employees with a private place, other than a bathroom, that is protected from view or intrusion by coworkers or the public. There are a few notable exceptions to the law. Employers with fewer than 50 employees are not required to provide break time if to do so would cause the business undue hardship. Further, break time applies only to hourly, nonexempt employees. Employers are not required to provide break time to exempt employees. In addition, the federal law does not preempt state laws with higher standards for accommodating nursing employees.
California Lactation Accommodation Law
California’s lactation accommodation law (Labor Code §§ 1030–1033) is broader than federal law and places greater impetus on employers to accommodate nursing employees. Like federal law, California law requires employers to provide a reasonable amount of break time for lactation purposes. If possible, lactation breaks should coincide with the employee’s usual break times, but they may be taken as often as necessary. A California employer is not required to provide break time if to do so would “seriously disrupt” the operations of the employer.
Beginning January 1, 2019, California law also requires employers to make reasonable efforts to provide a location, other than a bathroom, in close proximity to the employee’s work area to express milk. It can include the place where the employee normally works if the location is private and free from intrusion. The requirement is relaxed only if the employer can demonstrate to the Department of Industrial Relations (“DIR”) that providing a private area other than a bathroom would impose an undue hardship on the employer given the size, nature or structure of the business. In that event, an employer only needs to make reasonable efforts to provide a room or location for expressing milk that is not a toilet stall.
Under California law, an employer may make a temporary space available for lactation when operational, financial, or space limitations make a permanent space unfeasible. The temporary location must be private and free from intrusion and used only for lactation purposes while an employee is expressing milk. California law permits agricultural employers to provide a private, enclosed, and shaded space, such as an air-conditioned cab of a truck or tractor, for this purpose.
Unlike federal law, California’s lactation accommodation law applies to all employers in the state, regardless of size, and covers both exempt and non-exempt employees. Also, unlike federal law, California does not limit how long after a child’s birth the mother may continue to take lactation breaks.
California law permits an employee to file a complaint with the Labor Commissioner if she believes her employer has violated her rights under the law. The penalty is one hundred dollars ($100) for each violation. An employer that fails to make reasonable accommodations may also face liability for violations of the state’s law requiring rest periods and the law prohibiting discrimination on the basis of sex. There is no lactation accommodation posting requirement under California or federal law.