The 12 Days of California Labor & Employment Series – Day 3 "Expansion of Lactation Accommodations"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the third day of Christmas, my Labor and Employment attorney gave to me—three french hens and AB 1976.

Prior to the enactment of AB 1976, California employers were required to provide a place where nursing mothers could express breastmilk other than a toilet stall. This could include an area in a bathroom. Surprisingly, Federal Law provided more stringent requirements than did California law in that federal law already required an area other than a bathroom be provided for nursing mothers. 

AB 1976 puts California on the same playing field as Federal Law. Now, a California employer is required to provide a place where nursing mothers can express breastmilk other than a bathroom. Depending on the employer's situation, it may be possible to set up a temporary area. This will be dependent upon whether the employer is unable to provide a permanent location due to operational, financial or space limitations; whether the temporary area is private and free from intrusion; and whether the temporary location is used for other purposes while it is being used for lactation.

There is also a hardship exclusion for employers who can demonstrate that they made reasonable efforts to provide a lactation space other than a toilet stall inferring a bathroom may be okay in certain situations. An example might be an employer who has a very small office wherein it includes one open space and a bathroom. Other hardship exclusions may include agricultural employers whose employees are working in the field.  

California employers who are currently providing only a bathroom for nursing mothers need to reassess for 2019 and determine if they are able to provide a new area. If they are not, employers should consult employment counsel to determine if they will meet the qualifications for a temporary area and/or a hardship exclusion. And, of course, employers should provide an appropriate amount of time to a nursing mother to express breastmilk. For any California employer who is looking for new space, remodeling, etc, a nursing area should be included in their plans.