California, HR News, Human Resources

SBS 34:New Lactation Law Requirements for California

Hey Compliance Warriors!

We’re back and this week we’re talking about the new lactation room requirements for California.

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Enjoy and until next time, Be Audit Secure!



Lisa: Welcome back to another edition of small business Spoonfuls. I’m Lisa Smith.

Mason: and I’m Mason Merrell.

Lisa: And today we are talking about the new California law that surrounds lactation breaks for breastfeeding moms.

Mason: This is an interesting one.

Lisa: Now we know that if you are an employer with 50 or more employees federally speaking, you are required to offer this break time and it is unpaid normally. And if you have less than 50 employees then you are still required to offer it. However, if it’s a hardship on your company, then you may be able to convince the judge and jury that you just couldn’t afford, or you didn’t have the means of doing it and so forth. And you might be relieved from that if you have less than 50, but we’re talking about California and how they have tweaked a few of the definitions and added a few things under Senate bill 142 and so now we want to really look at this to see what we might be missing out on because this is going to maybe change the way we do things. Effective January 1st.

Mason: So, you want to make sure you’re allowing your employees this break time, each time it’s needed, whether, and this is not just to go get the baby and feed the baby, this is also expressing breast milk as well. So that would be, using the pump to get the milk to a store for the baby. So, to keep the mom’s milk flow going basically.

Lisa: Exactly, and so this was kind of a tweak to the law because the current law says an employer must provide a reasonable amount of break time. But, now it says that such break time, would be allowed or provided each time such employee has a need to express milk. So, if that mom says, I have got to pump or express every hour, then you have to make room for that.

Mason: So it’s not, just a lot of time you get this much every day. You can spread it out however you want to do it. It’s this much time, each time that’s needed to happen.

Lisa: it is still unpaid unless it runs concurrently with bright time you already offer which is paid. So let’s say Mom took her break earlier and now she needs a separate break for lactation, then that’s an unpaid break. But you still cannot retaliate against her for taking it. You can’t roll your eyes and fine. Go ahead. Like you can’t do that because that is considered retaliation.

Mason: Yeah, absolutely. You gotta be understanding to the situation. So, let’s talk about the next expansion, which is the lactation room requirements

Lisa: So under the current law, which is, California law, but as a matter of fact is in all States, the employees must be provided with the use of a room or location other than the bathroom.

Mason: So that’s a kind of across the board thing. But the new law provides that the lactation room must be safe, clean and free of hazardous materials. Contain a surface to place a breast pump and personal items, a place to sit and to have, access to electricity, alternative IC, alternative devices, etcetera.

Lisa: Now, some of those devices might be extension cords, charging stations, things of that nature because a lot of breast pumps are electronically operated. They’re not just manual. So, we want to be careful with that. Now the other thing is that the lactation room shall not be a bathroom. Okay, so again, we’re still not going to stick them in the bathroom and must be in close proximity to the employee’s work area. So, those are very important things as well. It also provides that the employer must make sure there is a sink with running water and a refrigerator suitable for storing milk. So think along the lines of a lactation break room. Not just a corner we stick mom in because she’s such a nuisance. But this is legit, now, and this is, I’m not saying this is easy for everyone, but this is what the law says now in California. And as a matter of fact, these expectations are generally in every state anyway under federal law. But California put them down in writing and said we are going to require this.

Mason: Yup, that’s right. And the new law also provides where a multipurpose room you can use that for this lactation, area is used, the lactation takes precedence over other uses. So if you’re having a meeting in there when you know that this person’s going to have to take the break, that lactation will take precedent in court over. Oh, we were having a meeting in there and she just keeps trying to interrupt us.

Lisa: Mom is going to win this battle. So, it really would be great to have, like a closet that you renovate. I mean, not a tiny closet, but if you have like a small room for supplies or whatever, if you can renovate that and have that where you put a little fridge and you put some running water and you do all the things that are in this law, then if you’ve got, a larger number of employees, you have no options here, you’re going to need to figure this out.

Mason: don’t put her in the mop bucket room where you’re filling up buckets.

Lisa: No, make sure it’s comfort. You know, it can be multipurpose, but let’s, make sure it’s clean and not just we’re throwing mom into the supply closet.

Mason: So, let’s talk about some exceptions in accommodations for this law.

Lisa: Okay, it says that I’m under a Senate bill 142 an employer in a multi tenant building. Let’s think of an office building. So, there’s a whole bunch of you in one building. You could all put together one room with multiple lactation stations in it so that all of your employees could maybe gravitate to this one room, this one space and that would be helpful.

Mason: Yeah, that’s a great idea because you can just band together and knock this thing out and everybody’s happy, and if you’re abandoned together with other people and their building, cause usually you’re not the only person working if you’re working in a multilevel building. So, the only business so you can band together with other businesses. So that’s a nice employer accommodation there.

Lisa: Then think about employers or general contractors that coordinate a multiemployer work site. And you’re also going to have to provide lactation accommodations or provide a safe and secure location for subcontractor employers to provide lactation accommodation. So let’s say you’re the big contractor and you have subs, you’re going to have to make sure that you don’t say, Oh, that’s just their problem. No, it is your problem as well. And you have to provide this within two business days of them putting it in writing to you as a request that they need this accommodation.

Mason: That’s right. How about temporary spaces?

Lisa: An employer is going to have to comply with the requirements of the law by designing a lactation location. That is, if it’s temporary due to operational, financial or space limitations, then these spaces shall not be, the law says shall not be a bathroom and shall be in close proximity to the work area, shielded from view free from intrusion. All the same things apply. Even though you say, well, we’re only here temporarily or we don’t have this or we don’t have that, you’re going to have to make sure those things are still intact. You can’t, be excused. I mean it’s, there are some leniencies but ultimately you still have to provide the accommodation.

Mason: Finally, the kind of the point of accommodation here. An employer with fewer than 50 employees can establish, an exemption from the lactation room requirements. If it can show that it would have an undue hardship, on the company itself.

Lisa: That’s good California didn’t change up the number of employees because this is the federal law as well. California stuck with that. We definitely want to, look through all of this, go out and pull the law for yourself, take a look at it. And no matter what state you’re in, make sure you know what your state requires. This is California. They’re pretty stringent. But bottom line here, I didn’t really see anything in the new California law that really doesn’t apply to everyone in the US. They just made it a little more clear.

Mason: Also, the stakes for noncompliance here. It brings out that the law civil penalty in the amount of $100 for each day that the employee is denied break time or adequate space to express milk. You go a whole year without, having that space that’s reasonably accommodated for the person. And then the person decides to file a claim, this can cost you, 365 days of that.

Lisa: Hundred dollars a day money. And then you think about what if you have five employees that were affected by this and now they’re all five. I mean, we’re talking about a lot of money. So if you think I can’t afford to put together a lactation room, I’m not saying it’s not going to feel like a pain. I’m a mom and I breastfed, and I think it’s a great accommodation as an employer. I also see the other side of it, it’s better to go ahead and knock this out, make it available than it would be to try to fight a lawsuit on it later on.

Mason: It’s always good to just be, compliant. And in any state, in any situation, you’re in accommodate the mothers, they’re doing the best they can. All right, cool. So, I think that is all, once again, goes into effect. January 1st 2020s

Lisa: The new clarifications are January 1st that’s it. Well, I guess that’s a wrap. I’m Lisa Smith, and until next time, be audit secure.

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