Pregnancy Discrimination Act (PDA) – Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), prohibits discrimination based on an employee currently being pregnant, as well as post pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. In other words, while the PDA focuses on pregnant employees it does provide some protection for employees who are breastfeeding or nursing. In 2015 the Equal Employment Opportunity Commission (EEOC) officially adopted the position that lactation is protected by the PDA. Accordingly, failure to allow for time to express breastmilk could result not only in FLSA violations, but also a discrimination lawsuit under the PDA. Further, under the PDA, employers may not engage in adverse employment actions on the basis of an employee's lactation needs, yet the PDA does not require special accommodations.
Fair Labor Standards Act (FLSA) – The Patient Protection and Affordable Care Act (ACA) modified the Fair Labor Standards Act (a law that establishes basic job protections like minimum wage and overtime pay) to require that covered employers provide eligible employees with the right to pump breast milk on the job. Under the Nursing Mothers Provision, for up to one year after a child's birth, covered employers must grant eligible employees 1) reasonable break time to express breast milk for a nursing child for one year after the child's birth; and 2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to express breast milk. The law also protects workers from retaliation (like reassignment to a less desirable job, taking away job duties or benefits, or firing) for asserting their rights or filing a complaint about these issues, if they seek to assert these rights on the job.
California has its own requirements for how many employees an employer must have to be subject to FLSA's mandatory accommodations. California employers with fewer than 50 employees are not subject to the FLSA break time requirement for nursing mothers if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. California law requires employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee's work area, to express milk in private.
Several California jurisdictions have adopted their own workplace policies in this area. For example, San Francisco's Lactation in the Workplace Ordinance went into effect on January 1, 2018, and requires businesses to provide employees with breaks and a designated location for lactation. Employers must also implement policies that notify employees of their right to an accommodation for lactation. The ordinance also requires newly constructed or renovated buildings designated for certain uses to include lactation rooms, and amends the San Francisco building code to specify technical specifications of lactation rooms.
Proposed Bills in the California Legislature
There are currently two proposed bills in the California legislature that would expand employer obligations for providing nursing accommodations.
Assembly Bill 1976 by Assemblywoman Monique Limón, amends current law to specify that employers have to make a reasonable effort to provide a room “other than a bathroom” (not just other than a “toilet” stall) to accommodate such employees. On April 19, AB 1976 was referred to the Senate Committee on Labor and Industrial Relations.
Senate Bill 937 by Senator Scott Weiner would require employers to provide a lactation room (other than a bathroom) that shall be “in proximity to the employee's work area, shielded from view, and free from intrusion.” SB 937 also specifies that the lactation room must (1) be safe, clean, and free of toxic or hazardous materials, (2) contain a surface to place a breast pump and personal items, (3) contain a place to sit, and (4) have access to electricity. The bill also requires employers to provide access to a sink with running water and a refrigerator in close proximity to the employee's workspace. SB 937 also specifies requirements for employers with fewer than five employers, as well as compliance requirements for employers with multitenant buildings. On April 18, SB 937 was re-referred to the Senate Committee on Transportation and Housing for a hearing on April 24.
California Employment Lawyers
We will keep you posted on AB 1976 and SB 937 as these bills develop in the legislature. In the meantime, if you feel you have not been afforded the proper accommodations or the breaks you are entitled for breastfeeding or lactation, don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Should you have questions about your rights as a nursing mother, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.
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