January 11, 2019
California employers are required by law to meet the needs of their breastfeeding workers. Labor Code sections 1030 – 1031 requires all employers, regardless of size, to provide a reasonable amount of break time to an employee desiring to express (pump) breast milk for the employee’s infant child. Employer’s may also be required to accommodate employees who have served as a surrogate to request break time to express breast milk for personal health reasons or to donate their milk to a milk bank. In Gonzales v. Marriott International, Inc. (C.D. Cal. 2015) 142 F.Supp.3d 961, an employee who served as a surrogate was not precluded from bringing a harassment and discrimination action against her employer who allegedly denied her time to express breast milk that she did not intend to deliver to the infant.
The break time used to express milk should run concurrently with any break time already provided to the employee, if possible. An employer must provide additional break time to employees who need it to express milk, however, additional break time or break time that does not run concurrently with the break time authorized for the employee by the applicable wage order of the Industrial Welfare Commission, may be unpaid. If the extra break time would seriously disrupt the employer’s operations, the employer may be exempt from providing additional break time. However, the criteria for establishing that the extra break time would seriously disrupt the employer’s operations has not yet been made available. Further, an employer may not require a doctor’s note or medical documentation before accommodating a breastfeeding worker.
All employers must make reasonable efforts to provide the employee with the use of a room or other location where the employee can express milk in private. This location should be in close proximity to the employee’s work area, and can be her usual workspace if that provides sufficient privacy and meets the other requirements of the statute. The law specifically states that the designated location for expressing breast milk in private cannot be a bathroom, unless the employer can demonstrate an undue hardship due to the size, nature, or structure of the employer’s business. The room, cannot however, be a toilet stall. It is as yet unclear whether only men or also women must be excluded from the designated private location.
An employer who violates any provision of this law can be punished by a fine of $100 for each violation. Violations of this statute will not be misdemeanors. Upon inspection or investigation, the Labor Commissioner may issue a citation if it determines that a violation has occurred.
Many employers are concerned about a lack of specific guidelines. For instance, it is unclear how often the employee must be permitted to express milk during the workday and whether she can be required to adhere to a schedule. While the Labor Commissioner works out these and other issues, we suggest that employers protect themselves from possible violations as follows:
- When an employee asks to express milk at work, make immediate accommodations for the employee to do so during the employee’s existing break time.
- If the nursing employee needs additional break time to express milk, ask the employee to make a specific request in writing that states the additional time needed. (A simple email should suffice.)
- Coordinate a plan with the employee that meets the employee’s needs while at the same time causes the least disruption in the work schedule.
- Document your efforts to accommodate the employee, and ask the employee to keep records of additional break time as well.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.