Gage Dungy is a partner and Savana Manglona is an associate with the law firm of Liebert Cassidy Whitmore; they can be reached at gdungy@lcwlegal.com and smanglona@lcwlegal.com respectively.

In late 2019, Gov. Gavin Newsom signed SB 142 (Chapter 720, Statutes of 2019) into law. This legislation significantly expands an employer’s obligation to provide lactation accommodations for employees — and provides consequences for noncompliance.

The law took effect Jan. 1, 2020, and follows the lead of the City and County of San Francisco’s 2017 Lactation in the Workplace Ordinance, which expanded lactation accommodation requirements for San Francisco employers. SB 142 now applies similar requirements to all California employers, including cities. As a result, cities should be aware of these new obligations to ensure their worksites are compliant.

New Requirements of the Law

Under existing law, employers are required to give employees a reasonable amount of break time to express milk. This break time shall run concurrently with any break time already provided to the employee or otherwise be unpaid. SB 142 now also clarifies that a reasonable amount of time be provided each time the employee has a need to express milk.

While providing lactation accommodations is not new to California employers, this new law requires each employer to provide a private lactation space — either permanent or temporary — that must:

• Be shielded from view and free from intrusion while the employee expresses milk.
• Be safe, clean, and free of hazardous materials.
• Contain a surface on which to place a breast pump and personal items.
• Contain a place to sit.
• Have access to electricity or alternative devices (such as extension cords or charging stations) needed to operate an electric or battery-powered breast pump.

Employers are also required to provide access to a sink with running water and a refrigerator or cooler suitable for storing milk in close proximity to the employee’s workspace. While the requirement to provide a sink and refrigerator does not necessarily require that they be provided in the lactation room, the new law is unclear on whether providing these in a bathroom will satisfy this requirement. Furthermore, if an employer designates a multipurpose room for a lactation room, then lactation purposes must take precedence over the other uses during the time the room is used for lactation purposes.

Shared Workspace Accommodations and Limited Exemptions

Cities that have offices in multi-employer worksites, such as an office building shared by multiple tenants, can comply with SB 142 by using a shared space within the worksite if the city cannot provide a lactation location in its own workspace.

A limited exemption to the requirement that an employer provide a room for the lactation accommodation may exist for employers with fewer than 50 employees. For example, under this provision, if a city with fewer than 50 employees can show that making a space available for breast pumping would impose an undue hardship by causing significant difficulty or expense related to the size, financial resources, nature, or structure of the employer’s business, it may qualify for an exemption. However, such smaller cities are still expected to make reasonable efforts to provide a lactation accommodation other than a restroom stall to the employee.

Employers Must Develop a Specific Lactation Accommodation Policy

SB 142 also requires that California employers develop and implement a policy regarding lactation accommodation requirements that includes:

• A statement about an employee’s right to request lactation accommodation.
• The process by which an employee makes the request.
• An employer’s obligation to respond to the request.
• A statement about an employee’s right to file a complaint with the state labor commissioner for any violation of the law.

Therefore, cities need to revise their personnel rules and policies to include the lactation accommodation policies listed and make them readily available to all employees. Cities are also now required to distribute the policy to new employees at the time of hire and whenever an employee makes an inquiry about or requests parental leave. If for some reason a city cannot provide a break time or location that complies with its policy, the city must provide a written response to the employee.

Penalties for Noncompliance

Employers not in compliance with SB 142 are subject to consequences. An employer who fails to provide reasonable break time or adequate lactation accommodations may be fined $100 for each day that an employee is denied reasonable break time or adequate space to express milk. In addition, an employer that discharges, discriminates, or retaliates against an employee for exercising her rights under the lactation accommodation law is in violation of SB 142, and that employee may file a complaint with the state labor commissioner as a result.

The Path Forward for Cities

In response to SB 142, California cities should review each of their worksites to determine which potential on-site locations can be used for lactation accommodations and make any necessary changes to the workplace to comply with the new requirements. In addition, cities should implement the new lactation accommodation policy required under SB 142 and properly disseminate the policy to its employees as required by the law.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.