California Expands Upon Lactation Accommodation Requirements

By Susan E. Groff

Jackson Lewis P.C.

California Governor Jerry Brown signed into law Assembly Bill 1976, expanding California employer obligations respective to employee lactation accommodation. Under preexisting California Labor Code section 1031, an employer was required to make available a private location, other than a toilet stall, for an employee to express milk for an infant child and provide employees with a reasonable amount of break time to do so. Recently signed, Assembly Bill 1976 amends Labor Code section 1031 providing that the private location be a place other than a bathroom, when reasonable.

Assembly Bill 1976 also outlines when temporary lactation locations may be sufficient. An employer may satisfy its obligations under the section by showing that:

1. Operational, financial, or space limitations render the employer unable to provide a permanent lactation location.
2. The temporary location is private and free from intrusion while an employee expresses milk.
3. While an employee expresses milk, the temporary location is used only for lactation purposes.
4. The temporary location otherwise meets the requirements of state law for lactation accommodation.

The amendment also specifically provides for agricultural settings. An agricultural employer, as defined in Labor Code Section 1140.4, must 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.

As amended, Labor Code section 1031 will press employers to make reasonable efforts to provide an employee with the use of an area, other than a bathroom, to express milk. The location is to be near the employee’s work area and afford the employee privacy. The area where the employee normally works may be appropriate if it otherwise meets the requirements set out in the statute. When an employer can demonstrate that providing a private area other than a bathroom would impose an undue hardship on the employer — when considered in relation to the size, nature, and structure of the employer’s business — the employer need only make reasonable efforts to provide an employee with the use of a private area other than a toilet stall.

Assembly Bill 1976 was one of two lactation accommodation bills that passed both houses and made their way to the Governor’s desk. Yet Governor Jerry Brown vetoed Senate Bill 937 which proposed extensive requirements for lactation rooms.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***