Employers' Questions Answered: San Francisco's Lactation in the Workplace Ordinance

by Allen Matkins

Allen Matkins

San Francisco's Lactation in the Workplace Ordinance will become effective on January 1, 2018. The Ordinance imposes requirements that go beyond those that federal and California law already impose on employers and will require affected employers to update their employee handbooks.

What Employers Are Covered By The Ordinance?

Any person or entity with an employee who works in San Francisco. The City or any government entity are not employers under the Ordinance.

What Employees Are Covered By The Ordinance?

Any person who is employed within the geographic boundaries of San Francisco by an employer, including part-time employees.

What Are The New Requirements For Employers Under The Ordinance?

Employers covered by the Ordinance must: 

Provide employees with a Lactation Location (defined as the space, room or location an employer must provide for an employee for the purposes of expressing breast milk); and 

Develop and implement a Lactation Accommodation policy.

What Are The Requirements For A Lactation Location?

  • Not a bathroom; 
  • In close proximity to the employee’s work area;
  • Shielded from view and free from intrusion from co-workers and the public;
  • Safe, clean and free of toxic or hazardous materials;
  • Contains a surface (e.g., a table of shelf) to place a breast pump and other personal items;
  • Has a place to sit; and
  • Has access to electricity.

Additionally, employers must provide, in close proximity to the employee’s work area, access to a refrigerator where the employee can store breast milk and access to a sink with running water.

While the Lactation Location may include the place where the employee normally works if it otherwise meets these requirements, employers may also designate a room as a Lactation Location. This designated room may also be used for other purposes as long as the primary function of the room is a Lactation Location, its use as such takes priority over other uses, and the employer makes this known to its other employees. 

Can Employers Be Exempt From The Lactation Location Requirements?

Yes, but only if the employer can establish an undue hardship. Undue hardship may exist if compliance would impose significant expense or operational difficulty on the employer when considered in relation to its size, financial resources, nature or business structure. For example, an employer might be exempt if compliance would require it to build a room, undertake a construction project, remove seating from a restaurant or remove retail floor space.

What Must Be Included In The Employer’s Lactation Accommodation Policy?

The Ordinance requires employers to develop and implement a Lactation Accommodation policy that includes:

  • A statement that an employee has a right to request Lactation Accommodation (which is defined to include lactation breaks and a Lactation Location)
  • A process by which an employee may request Lactation Accommodation including:
    • the means by which an employee may submit a Lactation Accommodation request;
    • a requirement that the employer responds to a Lactation Accommodation request within five business days; and
    • a requirement that the employer and employee engage in an interactive process to determine the appropriate Lactation Accommodation for the employee
  • A statement that if the employer does not provide a Lactation Accommodation in line with this Ordinance, then it must provide the employee with a written response that identifies its basis for denying the employee’s request 
  • A statement that retaliation against an employee for exercising his or her rights under this Ordinance is prohibited

The Lactation Accommodation policy must be included in the employer’s employee handbook or set of policies. And the employer must distribute this policy to all employees upon hire and to any employee who inquires about or requests pregnancy or parental leave. 

Are Employers Required To Keep Records of Lactation Accommodation Requests?

Yes, employers must maintain records of employee Lactation Accommodation requests for a period of three years. The record must include the employee’s name, the date of the request, and a description of how the employer resolved the request. Employers must allow the Office of Labor Standards Enforcement (OLSE) access to these records. If the employer fails to maintain records or does not allow the OLSE access to them, then a rebuttable presumption arises that the employer violated the Ordinance and it can only be rebutted by clear and convincing evidence to the contrary.

How Is The Ordinance Enforced?

The OLSE is responsible for enforcing the Ordinance. Beginning January 1, 2018, the OLSE will only issue employers warnings and notices to correct. Beginning January 1, 2019, after issuing a notice to correct and providing the employer with a reasonable amount of time to resolve the violation, the OLSE may impose administrative penalties up to $500 per violation and $50 per day for each employee as to whom the violation occurred. 

The Ordinance does not expressly provide employees with a private right of action, but it remains to be seen whether courts would permit such actions against employers. 

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.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.