Pending California Legislation Alert! Senate Bill 937 Seeks To Require California Employers To Provide Lactation Facilities In The Workplace

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If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

On January 29, 2018, California State Senators Connie Leyva and Scott Wiener joined state and local legislators to introduce Senate Bill 937 (“SB 937”), which, if passed, will amend California Labor Code sections 1030, 1031, and 1033, and add sections 1034 and 1035. California may follow in the footsteps of a similar ordinance passed by the City of San Francisco as described here.

Below are some of the substantive amendments and additions that SB 937 will require, if it becomes law.

Labor Code section 1031 will be amended to require employers to provide employees with private space for expressing milk which includes:

  • A private space, other than a toilet stall, in close proximity to the employee’s work area free from intrusion while the employee is lactating;
  • Access to electricity;
  • Access to a refrigerator suitable for storing milk in close proximity to the employee’s workspace;
  • Access to a sink with running water;
  • An area that is safe, clean, and free of toxic and hazardous materials;
  • A surface to place a breast pump and personal items; and
  • A place to sit.

Employers may apply for an undue hardship waiver with the Department of Labor Standards Enforcement (“DLSE.”) Specifically, employers with less than 50 employees may establish an exemption from any requirement of Section 1031 if the employer can demonstrate the requirement would impose an undue hardship by causing the employer significant expense or operational difficulty when considered in relation to the size, financial resources, or structure of the employer’s business. As an aside, employers in multi-tenant buildings may share a space with multiple employers to reduce some burdens on small business owners.  The bill also allows an employer to designate a space as a temporary lactation location if that employer is unable to provide a permanent lactation space due to operational, financial or space limitations. (Sen. Bill No. 937 (2017-2018 Reg. Sess.).)

Labor Code section 1033 will be amended to deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law. Moreover, employees will also be protected from discrimination or retaliation by their employer for requesting or asking about lactation space by permitting them to file a complaint with the Labor Commissioner pursuant to Labor Code section 98.7.

Labor Code section 1034 will be implemented, which would require employers to:

  • Develop and implement a lactation accommodation policy;
  • Include the lactation policy in the employer’s handbook or set of policies that is made available to employees;
  • Distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave;
  • Provide a written response to an employee if the employer cannot provide break time or a location that complies with the policy; and
  • Maintain a record of requests for three years from the date of request and allow the Labor Commissioner to access these records.

Labor Code section 1035 will be added, which will require the DLSE to establish best practices for lactation in the workplace, including a model lactation policy, and a request form, all to be made available for download from the Internet.

The text of SB 937 is available here. On May 30, 2018, the bill passed out of the State Senate and was ordered to the State Assembly, where the bill will go through the committee process again. As of June 26, 2018, the bill was re-referred to the appropriations committee. Please contact Jackson Lewis with any questions about this pending new law.

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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