Under the FEHA, the definition of discrimination or harassment due to “sex” includes “breastfeeding and medical conditions related to breastfeeding.” Employers are prohibited from discriminating against employees or job applicants because of breastfeeding and related medical conditions.2

• Consult legal counsel prior to denying a request for lactation accommodation.
  
  

Location to Express Milk

You must provide an employee with a location to express milk that meets certain requirements. The location must be a private place, other than a bathroom, that is in close proximity to the employee's work area, shielded from view and free from intrusion.

The location also must:3

• Be safe, clean, and free of toxic or hazardous materials;
• Contain a surface to place a breast pump and other personal items;
• Have a place to sit; and
• Have access to electricity or alternative devices (such as extension cords or charging stations) allowing operation of an electric or battery-powered breast pump.

The employee's normal work area can be used if it allows the employee to express milk in private and meets all the above requirements.

In addition, you must provide the lactating employee access to a sink with running water and a refrigerator suitable for storing breast milk close to the employee's workspace. If a refrigerator cannot be provided, you may provide another cooling device suitable for storing milk, such as an employer-provided cooler.

An employer with less than 50 employees may be exempt from the above requirements regarding the type of location to be provided if the employer can demonstrate that the requirements would impose an undue hardship by causing significant difficulty or expense based on the size, financial resources, nature, or structure of the business. In that case, the employer must still make reasonable efforts to find a private and close location other than a toilet stall.

While there is no requirement that an employer provide a permanent location designated solely for lactation accommodation by its employees (such as a lactation room), if a temporary location is used, the following requirements must be met:

• The employer must be unable to provide a permanent lactation location because of operational, financial, or space limitations;
• The temporary location must be near the employee’s area of work;
• The temporary lactation location must be private, shielded from view, and free from intrusion while an employee expresses milk;
• The temporary lactation location cannot be a bathroom; and
• The temporary lactation location must otherwise meet the requirements concerning lactation accommodation.

Where a multipurpose room is used for lactation and other purposes, the use for lactation must take precedence over other uses of the room, but only for the time needed for lactation purposes.

An employer in a multitenant building or multiemployer worksite can provide a space shared among multiple employers within the building if the employer cannot provide a location within the employer’s own workspace. Employers or general contractors coordinating a multiemployer worksite must either provide lactation accommodations or provide a location for a subcontractor employer to provide lactation accommodations on the worksite within two business days of a written request by a subcontractor.

Agricultural employers may provide an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.4

Break Time to Express Milk

Employers must provide a reasonable amount of break time to accommodate an employee who wants to express breast milk. You can require an employee to use the paid rest break time already provided by law. However, if the employee needs a reasonable amount of additional time for expressing milk beyond their paid rest breaks, the time must be provided, but it can be unpaid. Employees can also choose to use meal break time to express breast milk, but this does not relieve you of your responsibility to provide reasonable additional time as an accommodation.

Lactation Policy

Employers must develop and implement a lactation accommodation policy that includes the following:5

• A statement about an employee’s right to request lactation accommodation;
• The process by which employees can make requests for lactation accommodation;
• An employer’s obligation to provide a written response to an employee's request for lactation accommodation if the employer cannot provide the required break time or location; and
• A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of this law.

Employers must include a Lactation Accommodation Policy in an employee handbook or set of policies made available to employees and must provide it to all employees upon hiring and when an employee asks about or requests parental leave.

• Lactation Accommodation Policy
• Lactation Accommodation Policy — Instructions

Local ordinances may also cover requirements for lactation accommodation.

 

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1. Lab. Code secs. 1030-1033