Beginning Jan. 1, companies in California will need to ensure appropriate accommodations are made available to its employees who need to express milk. 

On Sept. 30, Gov. Jerry Brown signed into law Assembly Bill 1976 (AB 1976), amending Labor Code Section 1031 (Section 1031), which outlines the current lactation accommodation requirements for all employers in California.  

In its current state, Section 1031 requires that employers make available a space other than a toilet stall, close to the employee's work area, for an employee to express milk. Practically speaking, a private bathroom (that could be locked), without any further showing, is sufficient to comply with the law. The current law does not mention whether the lactation accommodation area should be permanent or temporary. 

However, AB 1976 expands Section 1031 in two ways. First, it requires employers to provide a location other than a bathroom, close to the employee's work area, for an employee to express milk. Second, it impliedly requires that the lactation accommodation area be permanent, in that it outlines criteria a company must show if it cannot make a permanent area available for an employee to express milk.  

If A Permanent Lactation Location is Unavailable, a Temporary One May be Provided Subject to Certain Criteria 

Understandably, due to operational, financial, or space limitations, some companies may not have, or be able to make available, a permanent area close to an employee's work area for an employee to express milk. Under these circumstances, an employer will be in compliance with Section 1031 if it provides a temporary location, so long as the temporary space meets the following criteria:

  • Must be "private and free from intrusion while an employee expresses milk;"
  • Must only be used "for lactation purposes while an employee expresses milk;" and 
  • The employer meets any other state law requirements regarding lactation accommodations, such as compliance with any applicable Industrial Wage Order relating to rest periods. 

If the above criteria are met, a private lockable bathroom (that only the employee can use to express milk for the time needed) could suffice.   

Certain Employers May Also Apply for an Exemption With the Department of Industrial Relations (DIR)  

If a company is unable to comply with providing a permanent or temporary location for an employee to express milk, one of two DIR exemptions may apply. The first exemption applies only to agricultural employers. The second exemption applies to companies who can show an undue hardship. 

Agricultural employers will be in compliance with the lactation accommodation laws if "a private, enclosed, and shaded space" is provided for an employee to express milk. Under this exemption, an air conditioned cab of a truck or tractor for an employee to express milk would suffice.       

Any company may apply for an undue hardship exemption by showing that due to its size, nature, or structure of the business, it cannot comply with the requirements of Section 1031.  If the undue hardship exemption applies, the company would be able to provide any location available for an employee to express milk other than a toilet stall.

Best Practices and Recommendations 

Companies should consider whether a permanent space is available or can be made available, other than a bathroom, for employees to express milk. This could be an empty conference room or office that can be a solely dedicated pumping area.  

If there are operational, financial, or space limitations preventing the ability to make available a permanent private space for employees to express milk, a temporary space should be made available, so long as that space is private and can be used by the employee solely for expressing milk for the time needed.  

If the size, nature, or structure of the business is prohibitive to providing a permanent or temporary space for an employee to express milk, then a request should be made to the DIR for an exemption.  

Originally published in L.A. Biz

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