Dear Littler: Do We Have to Provide the Kitchen Sink (Literally!) to Lactating Employees?

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Dear Littler: A long-term San Francisco-based employee with our company is returning soon from maternity leave. In discussing her return date, she requested accommodations for expressing breast milk at work. After working with our human resources manager, we decided to install a lock on her office door so that she would have a private and convenient place to do so. The employee is not satisfied with this measure, however, and has requested a room with both a sink and a refrigerator for her private use. We have a kitchen on a nearby floor, but we aren’t sure if that is necessary or sufficient. Also, we have locations throughout the country, and similar questions keep coming up at our various regional offices. Do we really need to provide “the kitchen sink” to be in compliance with lactation accommodation laws? What are our duties?

                                                                    —Flummoxed in San Francisco

Dear Flummoxed,

In the last few years, we’ve seen a trend of state and local governments enacting specific lactation accommodation regulations. Notably, these laws and ordinances often exceed the federal protections for accommodating lactating employees. With these varying rules, and ongoing changes, I can understand your confusion about your company’s lactation accommodation obligations.

While your specific question arose in San Francisco, you mentioned that your company maintains other offices around the country facing similar questions. We will first explore the protections your local employees are entitled to under federal and California law, and pursuant to a San Francisco lactation accommodation ordinance. Then I’ll briefly highlight some other considerations your company may wish to consider, based on the laws on the books in other jurisdictions.

Federal Lactation Accommodation Laws

The Patient Protection and Affordable Care Act (Affordable Care Act) provides basic protections for lactating employees that apply across the country. Passed in 2010, the Affordable Care Act amends section 7 of the Fair Labor Standards Act to require employers with 50 or more employees to provide a private space that is not a bathroom and is protected from public and other employees’ view. Employers must also provide lactation breaks, of a “reasonable” duration for up to one year after childbirth. An employer with fewer than 50 employees is not required to provide the break time if it would create an undue hardship for the business. (Whether there is an undue hardship is based on the expense or difficulty for a specific employer to comply with the break-time guidelines as compared to the size and finances of the overall business.)

The Affordable Care Act also notes that state laws with greater protections are not preempted by the federal law.

Based on your question, it seems safe to assume that your company has at least 50 employees across the United States. Regardless of where these employees work, the Affordable Care Act provides a baseline for your company’s lactation accommodation duties.

California—and San Francisco—Lactation Accommodation Laws

State and local protections sometimes go beyond federal mandates for lactating employees on details such as what amenities are required for a lactation space or how long after the birth of a child breaks must be provided (e.g., for up to one, two, or three years).

Not surprisingly, California has expansive rules for lactation accommodations and related facilities requirements. In keeping with federal law, the California labor code mandates that employers provide a reasonable amount of break time for expressing breast milk and a private area “in close proximity” to the employee’s work space. Moreover, as of January 1, 2019, this area cannot be a bathroom or be used for other purposes while in use for expressing breast milk. The location can be a temporary space, but only if certain criteria are met.

As you write from San Francisco, note that the city has gone well above both federal and state law mandates—particularly for lactation space. The city’s Lactation in the Workplace Ordinance, adopted in 2018, includes several employee-friendly components. Employers with at least one employee must provide lactation breaks, unless they can show undue hardship would result. Covered employees include anyone (including part-time employees) working within the city’s geographic boundaries, as long as they perform at least 56 hours of work within city limits per year.

San Francisco employers must respond to any requests for lactation accommodation in writing within five business days of the request. Employees can submit requests verbally, by email, or in writing, and cannot be required to provide a doctor’s note or similar documentation of the need for accommodation. In addition, San Francisco requires employers to implement a written lactation accommodation policy, which must include specified terms and be provided to new employees at hire, as well as to employees who inquire about parental leave.  In addition, if the employer maintains an employee handbook, the handbook must include the lactation accommodation policy.

If possible, lactation break time should run concurrently with any other break time already provided. The California and San Francisco lactation accommodation laws do not require employers to pay non-exempt employees for breaks beyond regularly scheduled break time. The employee’s travel time to and from the lactation location (and to and from refrigeration and running water) is not considered part of the break time. Businesses cannot limit the number or duration of lactation breaks, unless the employer can show that the requested duration of breaks is unreasonable. Unlike in some other jurisdictions, the San Francisco ordinance does not limit an employee’s right to lactation accommodation based on the age of the employee’s child.

As to facilities, the Lactation in the Workplace Ordinance mandates that lactation accommodations be safe and clean, have a surface for placing a breast pump and personal items, have a seat, and provide access to electricity. The ordinance does not, however, require employers to build a designated lactation room, remove retail space, or otherwise incur undue hardships to meet the requirements.

In addition to a private space, free from intrusion, employers in San Francisco must also provide employees with access to a refrigerator where the employee may store expressed milk and to a sink with running water. The lactation space, refrigerator, and sink must be located “in close proximity” to the employee’s work area.

With those principles in mind, let’s return to your question, Flummoxed. It sounds like you’ve already contemplated some of the issues in play, with respect to your San Francisco employee. Putting a lock on her office door likely complies with federal, state and local requirements to provide private, convenient, non-bathroom space for her to express milk, assuming her office has a desk or similar surface, is clean and free of hazards, and offers both a chair and electricity.

And what about that kitchen sink?! As your employee correctly states, she is entitled to access to a refrigerator and sink, by San Francisco ordinance. But the ordinance does not explicitly require that these kitchen items be located in the same room as the private lactation space, as she suggests.

Ultimately, your question turns on the meaning of “close proximity” in the Lactation in the Workplace Ordinance. Is the kitchen on a nearby floor in “close proximity” to her work space, such that it satisfies local law? Thus far, there is no definitive guidance on this point from the courts or regulators for existing workspaces. In any event, rules promulgated by the San Francisco Office of Labor Standards Enforcement state that this determination will depend on the specific situation. The rules explain that the lactation space, refrigerator, and sink “should not be placed so far away” from the work area that the distance “would be likely to deter a reasonable similarly situated person from exercising their rights under the Ordinance.” Your proposal that the employee use the sink and refrigerator in the kitchen thus may suffice, depending on the configuration of your office space and the distance between her office and the kitchen area.

At this point, consider taking a second look at your office layout, with an eye toward any possible logistical obstacles for the employee. Consult with the returning employee to walk through options and reasonable, practical solutions. If you have not already done so, you should provide her with a copy of your company’s written lactation policy.

Accommodation Laws around the Country

You mentioned that your company has had similar questions arise at locations around the country. While you did not indicate where your company operates, I’ll briefly survey some of the issues you might encounter.

Approximately 25 states have enacted legislation related to lactation accommodations at work. States with accommodation provisions that go beyond the Affordable Care Act include, for example, Connecticut, Illinois, Indiana, Kentucky, Massachusetts, New York, Oregon, South Carolina, and Washington. Many state laws codify the federal guidelines, but several implement additional requirements for employers. Illinois dictates that lactation break time be paid. Several states specifically prohibit employers from discriminating or retaliating against employees who exercise their rights to lactation accommodation. And some jurisdictions require certain amenities for lactation space or impose notice duties, as in San Francisco.

Several localities have adopted their own lactation-related ordinances. For example, New York City employers (with four or more employees) must provide a designated “lactation room,” which means a sanitary place that can be used to express breast milk and is shielded from view and free from intrusion, and that includes (at a minimum) an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water. If a room an employer designates to serve as a lactation room is also used for another purpose, the sole function of the room must be as a lactation room while an employee is using the room to express breast milk. The room must also be “in reasonable proximity” to the employee’s work area and to a refrigerator suitable for storing breast milk. If providing a lactation room would impose an undue hardship, the employer must engage in a cooperative dialogue with the employee to determine a reasonable accommodation. In addition, New York City mandates that covered employers develop and distribute a written lactation policy, which must identify the process for employees to request a lactation room. The New York City ordinance also specifies how close a lactation area should be to running water and refrigeration facilities.

Of course, your company should comply with each of the varying lactation accommodation regulations in each jurisdiction where it operates. Be sure to review the state and local laws applicable wherever the company maintains locations and adopt policies and practices as needed.

Conclusion

I hope this review of pertinent issues and authorities has been helpful, Flummoxed. As discussed, your next steps should probably include a review your physical office space, an assessment of whether the kitchen is suitable and in close proximity to the employee’s office, and an open conversation with her about reasonable options. Now might also be a good time to make sure your San Francisco lactation policy is fully compliant and appropriately distributed.

Overall, it remains important for your company to work with lactating employees on their break times and scheduling so that milk expression, transport, and cleanup can be performed within the allotted break periods. And, as always, it is a good idea to consult with knowledgeable counsel for any updates to policies and practices and for guidance in responding to specific lactation accommodation requests.

Finally, employers should keep an eye out for future developments on this topic, as state and local lawmakers continue to explore accommodation bills. For example, California employers should be aware that the governor may sign a bill (SB 142)—similar to the San Francisco ordinance—that would impose additional lactation accommodation requirements statewide.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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