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Effective January 1, 2018, San Francisco's Lactation in the Workplace Ordinance, (the Ordinance) provides protections for nursing mothers working within the geographical boundaries of San Francisco.1
For more information on this ordinance, visit the San Francisco Office of
The SF Lactation Ordinance applies to all employers (excluding the city of San Francisco or any governmental entity) with any employee working within the geographical boundaries of San Francisco. This includes part-time employees, and there is no minimum number of employees required.2
A covered employee is any person employed within the geographic boundaries of San Francisco, including part-time employees.3 Employees who temporarily perform work in San Francisco are covered by the Ordinance for the hours worked in the city.4
Employees who occasionally perform work in San Francisco are covered by the Ordinance only if they perform 56 or more hours of work in San Francisco within a calendar year. Employees returning from a leave of absence are covered by the Ordinance if they performed 56 or more hours of work in San Francisco in the calendar year preceding the leave or if there is a reasonable expectation that the employee will perform 56 or more hours of work in San Francisco in the calendar year following the leave.5
You must provide a reasonable amount of break time to accommodate an employee who wants to express breast milk for their child. If possible, the break time runs concurrently with any break time already provided to the employee, such as
The number of minutes needed to express breast milk per lactation break and the number of lactation breaks needed per day may vary among employees and may change over time for the same employees. If you seek to limit the duration of an employee's lactation break or the number of lactation breaks per day, you must demonstrate that the requested break duration is unreasonable.7
You must also provide a lactation location, other than a bathroom, in close proximity to the employee's work area that is shielded from view and free from intrusion from co-workers and the public.8
The time that it takes an employee to get to and from the designated lactation location shall not be included as part of the employee's break time.9
The lactation location must:
The lactation location may be the space where the employee normally works if it otherwise meets the requirements of the Ordinance.11
Employers will also have to provide the employee access to a refrigerator and a sink with running water in close proximity to the employee's work area. The time it takes an employee to get to and from a refrigerator and a sink with running water shall not be included as part of the employee's break time if at a separate location from the lactation location.12
A multi-purpose room can satisfy these requirements; however, lactation accommodation must take priority.13
Employers in multi-tenant buildings who cannot provide a lactation location within the employee's workspace may provide a space that is shared among multiple employers, if the location meets the above requirements and is sufficient to accommodate all employees who wish to use it at any given time.14
Exemptions may be established in the case of "undue hardship," which is significant expense or operational difficulty when considered in relation to the size, financial resources or structure of your business. Examples i nclude having to build a room, undertake construction, or remove retail space or restaurant seating.15 The burden of proof is on the employer to demonstrate that an employee's request for lactation accommodation would impose an undue hardship. If you can comply with some of the provisions without undue hardship, you should comply with those and seek to assert an exemption for those provisions that you cannot provide without undue hardship.16
You may not impose a limit on the duration (i.e., months or years) of a lactation accommodation.17 Nor may you require any documentation, such a doctor's note, regarding an employee's need for a lactation accommodation or the number/duration of lactation breaks the employee needs.18
You also have to implement and distribute a written Lactation Accommodation Policy.19 The policy must be included in any employee handbook and distributed to employees at the time of hire or when an employee inquires about or requests parental or pregnancy leave.20
The written policy must include all of the following:
An employee's request for lactation accommodation may be provided orally, by email or in writing, and is not required to be submitted on a specific form.22 You must respond to an employee's request in writing or by email.23
The OLSE has issued a sample Lactation Accommodation Policy and a sample Request Form. You can find it on the
You must keep records relating to requests for accommodation for three years. Your records must include the employee's name, the date of the request, a description of how the request was resolved, and any written response provided to the employee.24
If you do not keep adequate records documenting wages paid or you do not allow the OLSE reasonable access to payroll records, it will be presumed that you violated the Ordinance. You will have to offer clear and convincing evidence to rebut this presumption.25
The OLSE will enforce the Ordinance. If the OLSE determines that you violated the Ordinance it may issue determinations with an administrative penalty of up to $500 per violation. To reimburse the city for the costs of enforcement, the OLSE may order additional penalties payable to the city of up to $50 per day for each person whose rights were violated.26
The OLSE's
Employees who assert their rights under the Ordinance are protected against retaliation. For example, employees have the right to request accommodation; complain to their employer about violations of the Ordinance; file formal complaints; inform other employees of their rights under the Ordinance; or assist other employees in asserting their rights.27
If an employer takes adverse action against an employee within 90 days after the employee asserted rights protected by the Ordinance, it will be presumed this action was retaliatory. The employer will have to offer evidence to rebut this presumption.28
1. San Francisco Labor and Employment Code (L.E.C.), sec 31.2
2. San Francisco L.E.C., sec 31.3
3. San Francisco L.E.C., sec 31.3
4. Rules Implementing the Lactation in the Workplace Ordinance, Rules 6.3, 6.4, 6.5 (July 25, 2018)
5. Rules Implementing the Lactation in the Workplace Ordinance, Rule 6.1 (July 25, 2018)
6. San Francisco L.E.C., sec 31.4(a)
7. Rules Implementing the Lactation in the Workplace Ordinance, Rule 1.1 (July 25, 2018)
8. San Francisco L.E.C., sec 31.4(b)(1)
9. Rules Implementing the Lactation in the Workplace Ordinance, Rule 1.2 (July 25, 2018)
10. San Francisco L.E.C., sec 31.4(b)(1)(A) - (D)
11. San Francisco L.E.C., sec 31.4(b)(1)
12. San Francisco L.E.C., sec 31.4(b)(2); Rules Implementing the Lactation in the Workplace Ordinance, Rule 1.2 (July 25, 2018)
13. San Francisco L.E.C., sec 31.4(b)(3)
14. San Francisco L.E.C., sec 31.4(b)(4)
15. San Francisco L.E.C., sec 31.4(c)
16. Rules Implementing the Lactation in the Workplace Ordinance, Rules 3.1 and 3.2 (July 25, 2018)
17. Rules Implementing the Lactation in the Workplace Ordinance, Rule 1.3 (July 25, 2018)
18. Rules Implementing the Lactation in the Workplace Ordinance, Rule 5.1 (July 25, 2018)
19. San Francisco L.E.C., sec 31.5(a)
20. San Francisco L.E.C., sec 31.5(b)
21. San Francisco L.E.C., sec 31.5(a)
22. Rules Implementing the Lactation in the Workplace Ordinance, Rule 4.1 (July 25, 2018)
23. Rules Implementing the Lactation in the Workplace Ordinance, Rule 4.2 (July 25, 2018)
24. San Francisco L.E.C., sec 31.6
25. San Francisco L.E.C., sec 31.6
26. San Francisco L.E.C., sec 31.8(a)
27. San Francisco L.E.C., sec 31.7(a) and (b)
28. San Francisco L.E.C., sec 31.7(d)