Question

What are my rights in California regarding breast-feeding and/or pumping when I return to work?

Natasha Chesler

Answered by:
Natasha Chesler

Located in Los Angeles, CA
Chesler McCaffrey LLP

Natasha Chesler - Employment Litigation - Super Lawyers

Answered by: Natasha Chesler

Chesler McCaffrey LLP
Los Angeles, CA
Phone: 310-882-6407
Fax: 310-882-6359

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Answer

Generally, an employer must accommodate an employee's right to pump upon her return to work. This essentially requires a private place to pump -- that is not a bathroom -- and a reasonable amount of time to do so. These rights are protected in both the California Labor Code and the California Fair Employment and Housing Act ("FEHA") (as well as federal legislation not addressed here). An employer found to violate these provisions may be liable for economic damages, non-economic damages, punitive damages, penalties and attorneys' fees. Women should feel free to stand up for these rights. Indeed, retaliation by an employer for requesting a lactation accommodation is also unlawful under the labor code and the FEHA and may subject the employer to further liability.

Below is a brief overview of the pertinent law:

In 2001, California enacted the following legislation protecting women's rights to continue breast-feeding after returning to work:

Labor Code § 1030 provides: "Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid."

Labor Code § 1031 provides: "The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section."

Labor Code § 1032 exempts an employer only if complying would "seriously disrupt the [employer's] operations." But this is an extremely heavy burden: "The bill does not contain any limit on the duration of mandated accommodation or in any significant way limit the amount or type of accommodation that must be provided. Unfortunately, employers are very familiar with the term accommodation. This is because the 9th Circuit has defined reasonable accommodation as something that takes an employer to the brink, although not over, the edge of financial ruin." Cal. Bill Analysis, A.B. 1025 Sen., 6/27/2001.

This legislation was an important step for women's rights. As the proponents of the bill explained: "…[C]urrently, employers are not required to give lactating mothers any extra break time or a proper facility to express breast milk. Working, breast-feeding mothers must use bathroom stalls or hide in supply closets while pumping breast milk. If a woman is prevented from expressing milk, infections can potentially develop and she can stop producing milk. The California Conference of Machinists is the sponsor of this measure and states that some employers prohibit working mothers from taking breaks to express and store breast milk. They were, in essence, forced to give up breast-feeding because failing to express breast milk diminishes milk production and is very painful." Cal. Bill Analysis, A.B. 1025 Sen., 8/22/2001.

In 2010, the Affordable Care Act amended the FLSA to also require employers to provide nursing mothers reasonable break time and a location (other than a bathroom) to express milk. 29 U.S.C. 207.

Finally, in 2012, the California Fair Employment and Housing Act amended the definition of "sex" to include "[p]regnancy" and/or "[b]reast-feeding" (or medical conditions related thereto). Cal. Gov. Code § 12926(r)(1)(A) and (C) (AB 2386).

Retaliation is also protected under both the FEHA and Labor Code § 98.6.

www.cmlegal.com

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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