Episode 44: HR Experts Recap New State Lactation Accommodation Rules

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, General counsel and Executive Vice President. And happy New Year, everybody. On this episode of the podcast, we are talking about one of the many new laws that took effect on January 1, 2020, that California employers need to be aware of.

New lactation accommodation requirements is what we're going to be talking about today for all workplaces that went into effect on January 1st. Here to discuss what is required of employers under this new law is Matthew Roberts and also Bianca Saad, two of Cal Chambers, employment law experts and frequent guests on the podcast. Welcome, both of you.

Thank you, Erica.

Thank you, Erica. Happy New Year.

Okay, so Cal Chamber issues a white paper and also a lengthy article that outlines all of the new laws that California employers need to follow. And we know that there's been quite a bit of press as well on several of the new laws. But one of the laws that I want to highlight that I think does have an impact on a very broad spectrum of employers is the new lactation accommodation requirements.

It's not new that employers have had to accommodate a worker who needs a space or needs some time to pump breast milk after returning from having birth, giving birth to a child. But the law now has expanded a little bit more. So let's talk a little bit about that. Matt, can you talk a little bit about what some of the requirements are for the new lactation accommodation requirements?

Of course, Erica. So as part of the bill, it's expanded the requirements that an employer must meet for the room that they provide to the lactating parent. In this case, the room that you provide no longer can be a restroom. It must be a room in close proximity to the employee's workplace. Within that room, there must be an electrical outlet or a way for the lactating parent to plug in a breast pump or to charge a battery operated breast pump. There must be a place for the lactating parent to sit. There must be a shelf for which they can place the breast pump. And the room has to be free from intrusion, meaning they have to be able to maintain privacy while they're in there and that the room can no longer have any toxic or hazardous materials within it.

So a lot more requirements as far as the actual location that the employer needs to provide for the employee.

Yes. What the law had required for the employers prior to the passage of this bill was that it just had to be a location other than a toilet. And now you can see that there's a number of new requirements that the employers have to meet here.

Okay. And Bianca, what else did the law require from employers? In other words, it's not just a matter of providing a room. Is there more that we need to be aware of here?

Yeah, there are some additional requirements. So in addition to the space itself, employers also need to provide access to a sink with running water and a refrigerator, and those need to be in close proximity to the employee's work area. And then additionally, on top of all of the requirements having to do with the location, there's actually a policy requirement. So all employers need to have that lactation accommodation policy. It needs to be given at the time of hire. And also when any employee is requesting about parental leave.

Is parental leave the actual language in the law?

Yeah, parental leave is the language that we have in the statute. So there are some questions about that as far as. Well, what does that mean? Is that referring to leave under the California Family Rights act, the new Parent Leave Act? Is it just parental leave in general? We don't really know exactly. But that's the language that the verbiage that's in the statute.

And as far as handing out the policy, does the policy even need to go to new hires?

Yes, the policy does need to be given to all new hires, and in addition to any employee who's requesting for that parental leave.

And as far as which employees receive the policy or make the parental leave request, does it matter whether it's a male or female worker who's making the request?

That's a really great question. And the statute does not make a distinction.

Okay, so all employees at the time of hire then need to receive this new policy. And then any employee that asks about parental leave requests it is it. Hey, I'm just curious. Am I entitled to parental leave? Would that trigger handing out the policy?

Yeah. So the way that it's worded is any request or inquiry into parental leave. So the moment that an employee is kind of just asking about it, generally, I think would trigger under the statute.

So we've talked a lot about right now, as far as the location. So all employers. Does it matter the size of employer as far as providing the location? And I know there is an undue hardship that we could talk about in a second, but this isn't one of those laws that say if you have X amount of employees or more, you have to follow it.

That's right. There is no specific employer size.

Okay.

Yeah.

All right. So we know that employers need to provide a room that can't be, a bathroom that's in close proximity to the Employee's work area, private free intrusion, has a surface to place a breast pump and personal items, a place to sit safe from and free of toxic or hazardous materials, which to me means it can't be a storage closet. It has to be an actual room that doesn't have maybe your Costco supply of, maybe even dish hand soap. I mean, are we going to really start to talk about it? And I believe the statute specifies or references a code section in the Health and Safety Code that will list some of those toxic chemicals. But honestly, I think for employers, the takeaway here is there needs to be a very safe and clean room for employees to use, access to electricity or alternative devices. And then, Bianca, you also mentioned a refrigerator and running water that doesn't have to be in the room itself, does it?

Great question. No, it does not. So the sink, the access to the sink with running water and the refrigerator, those just need to be in close proximity to the employee's workspace.

Okay. And with regards to the refrigerator, did the statue also allow, if not a refrigerator, some kind of cooler or a glue type cooler or something that the employee can use to keep the items cool?

Yes, the statute does allow for an employer to provide an alternative mechanism to provide the breast milk cool. So an employer provided cooler would suffice if they aren't able to provide a refrigerator.

Okay, so we've just talked about. Now, as far as the location, Matt, does the statute speak at all to the amount of time that an employee may use or how often may an employee take break to go and pump breast milk?

Yeah, the statute says as often as the employee needs to take a break to pump or express breast milk. Of course, something that hasn't changed is that the expectation is that the employee tries to coordinate their pumping time with their regularly scheduled rest and meal breaks. However, if they do need additional time, you need to provide that additional time. Any additional time provided or additional breaks provided are unpaid.

Okay. Now, as far as being unpaid, but the employer could choose to pay the employee during those break times too, if they wanted to.

Absolutely.

And is there a penalty that now attaches to an employer who doesn't provide that time to express milk?

Yeah. As we're all familiar with rest and meal break premium penalties, this now applies to lactation accommodation break issues where you failed to provide appropriate breaks. And again, as a reminder, the statute now says anytime they need a break to do so, you're providing it.

Right. So again, that means that premium pay is under labor code section 226.7, which is the equivalent of one hour of the employee's.

Regular rate of compensation. So their base rate, but now it's not only attaching to meal and rest break violations, but also this new lactation accommodation break, and I believe it also includes, is if you don't provide the employee with the location, so it's time or location that penalty will trigger. Have we received any guidance from any of the agencies, the Department of Fair Employment and Housing or the Labor Commissioner's Office as far as this penalty, is it going to apply each time? Is it capped? Do we know if there's any direction on the application of that premium?

We have not seen that yet.

Okay. So this is really important for employers to be aware as far as the teeth, that goes along with the lactation accommodation requirement. Now, also something that is really worth mentioning is there's a private right of action. So an employee who is either denied the proper location or the time to break to express milk can bring a lawsuit against the employer for violating these protections. The other thing to take note as well is an employee is protected from discrimination or retaliation for needing to either have a location and or take time away to express milk. Is there a time limit? So does this only apply for a year? Does it only extend to the first year that an employee needs to express milk?

Bianca, there is no specific requirement as far as how long an employee is entitled to a lactation accommodation in the workplace. It's just for however long they need to express breast milk for their infant child.

Okay, so it's really as long the employee needs that accommodation, the employer is going to have to reasonably accommodate.

That's correct.

Now I know that in some industries and some work areas, such as in the agricultural industry, where employees are outside, how is an employer going to provide a room for those industries that aren't conducive to an office setting?

Yeah, Erica, so the statute does provide for those who have workers who work outside or where there is no location, temporary locations. In the case of agricultural workers, this would include something like an air conditioned truck cab or air conditioned trailer or tractor for those employers who don't have the facilities. The statute does allow for temporary facilities to be erected. But remember the key word there is temporary. In the case of what we have now with a lot of work share areas and multi tenant buildings, those employers who work in small offices but are working within a building with a lot of tenants can share one lactation accommodation space. So if you're working in one of those multi tenant buildings, work with your landlord or work with your neighbors, to see if we can come up with one room that everybody can share, and everyone is then compliant under the law for providing that space.

Okay, excellent. And then finally, I know for some small employers, this might be quite a hardship. Perhaps they don't have that extra room, or perhaps they aren't able to meet all of the location requirements. I know that the statute included a hardship exemption. Bianca, can you speak a little bit to that?

Yeah. So there is an undue hardship exemption. It is limited, though, to those employers with fewer than 50 employees. And they need to be able to show that meeting the requirements would impose an undue hardship. That's by essentially causing significant difficulty or expense. And that's going to be based on things like their size, the financial resources, the nature or the structure of their business. So it's still a pretty high burden to meet. If they do satisfy that burden, then you need to provide a location other than a toilet stall in that case.

Okay. And again, folks with undue hardships, and we know that we have undue hardship exemptions in other areas of the law, that is a high burden to meet. And with this undue hardship exemption under the lactation accommodation law, the burden is on the employer to be able to prove that meeting the statutory requirements does meet that undue hardship threshold in the eyes of the Department of Fair Employment and Housing. So we would recommend consulting with legal counsel if you do believe that you meet that undue hardship exemption. Absolutely. All right, so quite a bit of information over one piece of legislation. Cal Chamber has updated its website, HR California, to include all the relevant information that we've talked about today, including a sample policy that is accessible to our members. So for those of you that are Cal Chamber members, make sure you check out HR California and log in to see all of the new information, including information regarding this bill. And thank you, Matt and Bianca, for joining us today. And thank you all for tuning in on this new 2020 podcast of the Year.

Thank you.

Thank you for having us, Erica.

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