Amendment To Washington Healthy Starts Act Expands Pregnancy Accommodation Obligations And Mandates Paid Lactation Breaks

Effective January 1, 2027, SB 5217 expands Washington's Healthy Starts Act ("Act") to apply the law to employers of any size, require scheduling flexibility for postpartum appointments, mandate paid lactation accommodation breaks, and impose civil penalties.

Application to Smaller Employers

The Act, which took effect in July 2017, requires employers with 15 or more employees to provide reasonable accommodations to pregnant employees unless doing so would create an undue hardship. Senate Bill 5217 makes the Act part of the Washington Law Against Discrimination and expands coverage to employers of one or more persons and any religious or sectarian organization not organized for private profit.

Scheduling Flexibility for Postpartum Visits

The Act specifies nine potential accommodations a covered employer must provide to a pregnant employee, absent undue hardship:

1. Providing more frequent, longer, or flexible restroom breaks;
2. Modifying a no food or drink policy;
3. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee's work station;
4. Providing seating or allowing the employee to sit more frequently if the employee's job requires standing;
5. Providing for temporary transfer to a less-strenuous or less-hazardous position;
6. Providing assistance with manual labor and limits on lifting;
7. Scheduling flexibility for prenatal visits;
8. Providing reasonable break time for an employee to express breast milk for two years after the child's birth each time the employee has need to express the milk and providing a private location, other than a bathroom, for expressing breast milk; and
9. Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the Washington Department of Labor and Industries ("Department") or the employee's attending health care provider.¹

The amendment expands the seventh accommodation to require scheduling flexibility for postpartum visits.² Importantly, the Act prohibits employers from asserting that it is an undue hardship to provide more frequent, longer or more flexible breaks, to modify a no food or drink policy, to provide seating or allow an employee to sit more frequently if the employee's job requires the employe to stand, or to impose limits on lifting over 17 pounds.

Paid Lactation Accommodation Breaks

While the Act previously did not require lactation accommodation breaks to be paid breaks, the amendment provides that lactation break time must be "paid to the employee at the employee's regular compensation rate." This pay requirement also applies to travel time to the location where the employee expresses milk, even if the travel may be to an offsite location. Further, employees cannot be required to use paid leave during lactation break or travel time, and lactation accommodation breaks are in addition to mandatory meal and rest periods. The term "regular compensation rate" is not defined.

Ability for Lactating Persons to Request that Jury Service Be Delayed or Excused

The amendment also revises Revised Code of Washington 2.36.100, which sets forth the circumstances under which a person may be excused from jury service. The amendment allows a person who is breastfeeding or expressing breast milk for an infant under 24 months of age to request a delay or excuse from jury service, subject to an attestation and court approval.³

Enforcement Transferred to Department of Labor and Industries, with Civil Penalties

The Act was previously enforced by the Washington Attorney General's Office, but the amendment brings the Act within the purview of the Department and outlines a process for investigations and enforcement. First, the Department must contact the employer and attempt in good faith to reach an agreement on a reasonable accommodation or interim accommodation. Next, if the Department and the employer are unable to reach agreement, the Department may issue a temporary order for up to 90 calendar days and may seek an order in Superior Court extending the temporary order beyond 90 days. The Department may also issue civil penalties for violations of the Act.⁴ The Department is directed to adopt rules for enforcement of the Act that are at least equal to the enforcement protections provided by the Washington Minimum Wage Act.

Recommendations for Employers

To prepare for the January 1, 2027, effective date of the amendment, Washington employers should review and be prepared to update their existing policies on pregnancy and lactation accommodation and their procedures for administering accommodation requests. Further, employers should consider plans to train managers and human resources staff on the new requirements for accommodations.

Footnotes

1. Wash. Rev. Code §43.10.005(1)(c)(i-ix).

2. Senate Bill 5217 Sec. 1(6)(g).

3. Senate Bill 5217 Sec. 7.

4. For employers in the construction industry, the Department may not assess duplicative penalties for violation of the lactation accommodation provisions of the Act and violations of Revised Code of Washington chapter 49.17.530, which requires employers in the construction industry to provide workers who perform construction activities and menstruate with bathroom breaks and access, an adequate and convenient supply of menstrual hygiene products at no cost to the worker, and lactation accommodation breaks.