Lactation Accommodation: Mandatory Breaks for Breastfeeding in California

California employees are entitled to lactation breaks under federal and state law.

Are you returning to work from pregnancy leave but still planning to breastfeed your child? You may be wondering how you’ll be able to manage breastfeeding when you’re back at work. Like many other states, California has passed laws to assist nursing mothers in this regard. Read on to find out what employers must do so that you can continue to breastfeed after returning to work.

For information about your other rights, including the right to be free from discrimination, see Pregnancy Discrimination: When You Should Talk to a Lawyer.

Lactation Breaks Under Federal Law

In 2010, the federal Affordable Care Act (often referred to as “ObamaCare”) amended federal wage and hour laws to require employers to provide lactation breaks for new mothers. Employers that are subject to the Fair Labor Standards Act (as most employers are), must provide nursing employees with “reasonable” unpaid breaks to express breast milk, for up to one year after the birth of a child. These employers must provide nursing employees with a private place, other than a bathroom, that is protected from view or intrusion by coworkers or the public. Employers with fewer than 50 employees are not required to provide breaks if it would cause undue hardship, meaning that it would be too difficult or costly given the employer’s size, resources, and structure.

The FLSA provides break time only to hourly, nonexempt employees. Although exempt employees are not covered under the federal law, they are covered under California’s lactation accommodation law. California law is broader in its protections for nursing mothers in other ways as well, as described below.

Lactation Breaks Under California Law

In 1998, the California legislature passed a resolution encouraging all California employers to accommodate the needs of breastfeeding employees by ensuring that employees would have adequate facilities for breastfeeding or expressing milk for their children. In 2002, the legislature enacted labor code laws to accomplish this goal, making it mandatory for all employers to provide breaks and other accommodations to nursing employees. (Cal. Labor Code § § 1030-1033.)

Covered Employers

Unlike several other California workplace laws requiring accommodation (for example, accommodation for employees with disabilities), which cover only employers with a certain minimum number of employees, the lactation accommodation law applies to all employers in the state regardless of size.

Breast Feeding Versus Expressing Breast Milk

California law requires all employers to provide all nursing employees with breaks throughout the day to express breast milk. In general, the law does not provide working mothers with the right to breastfeed their infants at work. However, when an employer provides on-site childcare facilities, a working mother may be able to breastfeed her child during her breaks.

Amount of Break Time

Employers must give nursing employees a reasonable amount of time to express breast milk during the workday. These breaks should be taken during the employee’s usual rest and meal breaks, if possible. However, employers must provide additional unpaid break time if necessary. Unlike federal law and the laws of some states, California has no upper limit on how long after a child’s birth the mother may continue to take lactation breaks. As long as the employee is nursing, she may take breaks to express breast milk.

Location

California employers must make reasonable efforts to provide nursing employees with a private room or space, other than a toilet stall, in which to express breast milk. This space must be close to the employee’s work area. If the nursing employee’s work space meets these requirements (such as a private office), this requirement is satisfied.

Employer Exception

If providing lactation breaks or a private space to express breast milk would “seriously disrupt” the operations of the employer, the employer does not have to comply with the law. For this exception to apply, there must be a significant burden on the employer; minor inconvenience will not qualify.

Penalties for Failure to Accommodate

An employer who violates the California lactation accommodation law may be penalized $100 per violation by the state labor commissioner.

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