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Breastfeeding Initiative

Lactation Accommodation Laws for Workplace, Jails and School

Laws to support a motherā€™s right to breastfeed

State Laws

California Labor Code Section 1030-1034 

1030. 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. 
 (a) An employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a bathroom, in close proximity to the employeeā€™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.
(b) An employer who makes a temporary lactation location available to an employee shall be deemed to be in compliance with this section if all of the following conditions are met:
(1) The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
(2) The temporary lactation location is private and free from intrusion while an employee expresses milk.
(3) The temporary lactation location is used only for lactation purposes while an employee expresses milk.
(4) The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.
(c) An agricultural employer, as defined in Section 1140.4, shall be deemed to be in compliance with this section if the agricultural employer provides an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.
(d) If an employer can demonstrate to the department that the requirement to provide the employee with the use of a room or other location, other than a bathroom would impose an undue hardship when considered in relation to the size, nature, or structure of the employerā€™s business, an employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employeeā€™s work area, for the employee to express milk in private.

1032. An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.

1033.
(a) The denial of reasonable break time or adequate space to express milk in accordance with this chapter shall be deemed a failure to comply for purposes of Section 226.7. An aggrieved employee may file a complaint under this subdivision with the Labor Commissioner pursuant to Section 98.

(b) An employer shall not discharge, or in any other manner discriminate or retaliate against, an employee for exercising or attempting to exercise any right protected under this chapter. This subdivision is not intended to limit or expand an employeeā€™s rights pursuant to Section 98.6. An aggrieved employee may file a complaint under this subdivision with the Labor Commissioner pursuant to Section 98.7.

(c) An employee may report a violation of this chapter to the Labor Commissionerā€™s field enforcement unit. If, upon inspection or investigation, the Labor Commissioner determines that a violation of this chapter has occurred, the Labor Commissioner may issue a citation and may impose a civil penalty in the amount of one hundred dollars ($100) for each day that an employee is denied reasonable break time or adequate space to express milk in violation of this chapter. The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for violations of this chapter shall be the same as those set forth in Section 1197.1.

(d) Notwithstanding any other provision of this code, violations of this chapter shall not be misdemeanors under this code.

1034.
(a) An employer shall develop and implement a policy regarding lactation accommodation that includes the following:

(1) A statement about an employeeā€™s right to request lactation accommodation.

(2) The process by which the employee makes the request described in paragraph (1).

(3) An employerā€™s obligation to respond to the request described in paragraph (1) as outlined in subdivision (d).

(4) A statement about an employeeā€™s right to file a complaint with the Labor Commissioner for any violation of a right under this chapter.

(b) The employer shall include the policy described in subdivision (a) in an employee handbook or set of policies that the employer makes available to employees.

(c) The employer shall distribute the policy described in subdivision (a) to new employees upon hiring and when an employee makes an inquiry about or requests parental leave.

(d) If an employer cannot provide break time or a location that complies with the policy described in subdivision (a), the employer shall provide a written response to the employee.

Resources:

Penal Code - CHAPTER 1. County Jails [4002.5] Lactation Accommodation in County Jails  

4002.5. (a) On or before January 1, 2020, the sheriff of each county or the administrator of each county jail shall develop and implement an infant and toddler breast milk feeding policy for lactating inmates detained in or sentenced to a county jail. The policy shall be based on currently accepted best practices. The policy shall include all of the following provisions:

(1) Procedures for providing medically appropriate support and care related to the cessation of lactation or weaning.

(2) Procedures providing for human milk expression, disposal, and same-day storage for later retrieval and delivery to an infant or toddler by an approved person, at the option of the lactating inmate and with the approval of the facility administrator.

(3) Procedures for conditioning an inmate's participation in the program upon the inmate undergoing drug screening.

(b) The infant and toddler breast milk feeding policy for lactating inmates shall be posted in all locations in the jail where medical care is provided and the provisions of the policy shall be communicated to all staff persons who interact with or oversee pregnant or lactating inmates.

(c) This section applies without regard to whether the jail is operated pursuant to a contract with a private contractor and without regard to whether the inmate has been charged with or convicted of a crime.

(Added by Stats. 2018, Ch. 944, Sec. 1. (AB 2507) Effective January 1, 2019.)

Education Code 222 

(a) A school operated by a school district or a county office of education, the California School for the Deaf, the California School for the Blind, and a charter school shall provide reasonable accommodations to a lactating pupil on a school campus to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Reasonable accommodations under this section include, but are not limited to, all of the following:

(1) Access to a private and secure room, other than a restroom, to express breast milk or breast-feed an infant child.

(2) Permission to bring onto a school campus a breast pump and any other equipment used to express breast milk.

(3) Access to a power source for a breast pump or any other equipment used to express breast milk.

(4) Access to a place to store expressed breast milk safely.

(b) A lactating pupil on a school campus shall be provided a reasonable amount of time to accommodate her need to express breast milk or breast-feed an infant child.

(c) A school specified in subdivision (a) shall provide the reasonable accommodations specified in subdivisions (a) and (b) only if there is at least one lactating pupil on the school campus.

(d) A school subject to this section may use an existing facility to meet the requirements specified in subdivision (a).

(e) A pupil shall not incur an academic penalty as a result of her use, during the schoolday, of the reasonable accommodations specified in this section, and shall be provided the opportunity to make up any work missed due to such use.

(f) (1) A complaint of noncompliance with the requirements of this section may be filed with the local educational agency under the Uniform Complaint Procedures set forth in Chapter 5.1 (commencing with Section 4600) of Division 1 of Title 5 of the California Code of Regulations.

(2) A local educational agency shall respond to a complaint filed pursuant to paragraph (1) in accordance with Chapter 5.1 (commencing with Section 4600) of Division 1 of Title 5 of the California Code of Regulations.

(3) A complainant not satisfied with the decision of a local educational agency may appeal the decision to the department pursuant to Chapter 5.1 (commencing with Section 4600) of Division 1 of Title 5 of the California Code of Regulations and shall receive a written decision regarding the appeal within 60 days of the department's receipt of the appeal.

(4) If a local educational agency finds merit in a complaint, or if the Superintendent finds merit in an appeal, the local educational agency shall provide a remedy to the affected pupil.

Resources:

Education Code ā€“ EDC: Title 3, Chapter 4.5. Equity in Higher Education Act 66271.9 

 (a) The California Community Colleges and the California State University shall, and a satellite campus of these systems and the University of California are encouraged to, provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Reasonable accommodations under this section include, but are not limited to, all of the following:

(1) Access to a private and secure room, other than a restroom, to express breast milk or breast-feed an infant child. The room shall have a comfortable place to sit and have a table or shelf to placeequipment described in paragraph (3).

(2) Permission to bring onto a college or university campus a breast pump and any other equipment used to express breast milk

(3) Access to a power source for a breast pump or any other equipment used to express breast milk.

(b) Lactating students on a college or university campus shall be provided a reasonable amount of time to accommodate their need to express breast milk or breast-feed an infant child.

(c) A campus of the California Community Colleges or the California State University may use an existing facility to meet the requirements specified in subdivision (a).

(d) Students shall not incur an academic penalty as a result of their use of the reasonable accommodations specified in this section, and shall be provided the opportunity to make up any work missed due to such use.

(e) Upon the construction of a new campus of the California Community Colleges or the California State University, the replacement, expansion, or renovation costing five million dollars ($5,000,000) or more involving plumbing of an existing building regularly used by students, including a student center, or the construction of a new buildingcosting five million dollars ($5,000,000) or more designed for use by students, the respective educational institution shall provide a sink in addition to the accommodations described in subdivision (a) in a room in the newly constructed campus or building, or in a room in the replaced, expanded, or renovated building. This subdivision only applies to an educational institution if the campus room currently designated for a lactating student to express breast milk or breast-feed an infant child does not have a sink.

(f) This section does not require an existing room designated for a lactating student to express breast milk or breast-feed an infant child to have a sink.

(g) The lactation accommodation shall be available to a student whenever a student is required tobe present on campus.

(h) (1) A complaint of noncompliance with the requirements of this section may be filed consistent with Subchapter 5 (commencing with Section 59300) of Chapter 10 of Division 6 of Title 5 of the California Code of Regulations. If the complaint is found to have merit, the campus or appropriate appellate body shall provide a remedy to the affected student.

(2) A complaint of noncompliance with the requirements of this section may be filed consistent with the procedures established by the California State University for complaints by students of discrimination based on disability, gender, or other applicable characteristics, and a student shall be afforded any remedies the student is entitled to pursuant to those procedures.

(i) This section does not infringe on any right to breast-feed in public pursuant to Section 43.3 of the Civil Code or any other law.

(j) The requirements in this section shall be implemented by the California Community Colleges and the California State University, and the University of California is urged to implement the requirements in this section, no later than January 1, 2020.

(Added by Stats. 2018, Ch. 947, Sec. 2. (AB 2785) Effective January 1, 2019.)

California Fair Employment and Housing Act 

(Government Code sections 12900 through 12996):

The Fair Employment and Housing Act prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, genetic information, age, military and veteran status, pregnancy, denial of medical and family care leave, or pregnancy disability leave. Government Code 12926 expands the definition of sex discrimination to include pregnancy, childbirth and breastfeeding, plus any medically related conditions regarding pregnancy, childbirth and breastfeeding.

Resources:

General Resources:

(California Code, Government Code - GOV Ā§ 12945.6 ):
(a)ā€‚It shall be an unlawful employment practice for an employer to do any of the following:
(1)ā€‚Refuse to allow an employee with more than 12 months of service with the employer, who has at least 1,250 hours of service with the employer during the previous 12-month period, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, upon request, to take up to 12 weeks of parental leave to bond with a new child within one year of the child's birth, adoption, or foster care placement. ā€‚If, on or before the commencement of this parental leave, the employer does not provide a guarantee of employment in the same or a comparable position upon the termination of the leave, the employer shall be deemed to have refused to allow the leave. ā€‚The employee shall be entitled to utilize accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the period of parental leave.
(2)ā€‚Refuse to maintain and pay for coverage for an eligible employee who takes parental leave pursuant to this section under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986 , ā€‰1 for the duration of the leave, not to exceed 12 weeks over the course of a 12-month period, commencing on the date that the parental leave commences, at the level and under the conditions that coverage would have been provided if the employee had continued to work in his or her position for the duration of the leave.
(b)ā€‚An employee is entitled to take, in addition to the leave provided pursuant to this section, leave provided pursuant to Section 12945 if the employee is otherwise qualified for that leave.
(c)ā€‚This section shall not apply to an employee who is subject to both Section 12945.2 and the federal Family and Medical Leave Act of 1993.
(d)ā€‚An employer may recover the premium that the employer paid as required by this section for maintaining coverage for the employee under the group health plan, if both of the following conditions occur:
(1)ā€‚The employee fails to return from leave after the period of leave to which the employee is entitled has expired.
(2)ā€‚The failure of the employee to return from leave is for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the control of the employee.
(e)ā€‚In any case in which both parents entitled to leave under subdivision (a) are employed by the same employer, the employer is not required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents parental leave totaling more than the amount specified in subdivision (a). ā€‚The employer may, but is not required to, grant simultaneous leave to both of these employees.
(f)ā€‚Parental leave taken pursuant to this section shall run concurrently to parental leave taken as described in Sections 44977.5 , 45196.1 , 87780.1 , and 88196.1 of the Education Code .
(g)ā€‚It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, an individual because of either of the following:
(1)ā€‚An individual's exercise of the right to parental leave provided by subdivision (a).
(2)ā€‚An individual's giving information or testimony as to his or her own parental leave, or another person's parental leave, in an inquiry or proceeding related to rights guaranteed under this section.
(h)ā€‚It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(i)ā€‚For purposes of this section, ā€œemployerā€ means either of the following:
(1)ā€‚A person who directly employs 20 or more persons to perform services for a wage or salary.
(2)ā€‚The state, and any political or civil subdivision of the state and cities.
(j)ā€‚To the extent that state regulations interpreting the Moore-Brown-Roberti Family Rights Act, also known as the California Family Rights Act ( Sections 12945.2 and 19702.3 ), are within the scope of, and not inconsistent with this section or with other state law, including the California Constitution, the council shall incorporate those regulations by reference to govern leave under this section.
(k)ā€‚This section shall take effect January 1, 2020.

Federal Laws

Section 7(r) of the Fair Labor Standards Act ā€“ Break Time for Nursing Mothers Provision 

(1) An employer shall provideā€” A. a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and B. a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Resources:

Title VII of the Civil Rights Act 

The Pregnancy Discrimination Act of 1978  amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy, childbirth, and related medical conditions. In 2013, the United States Court of Appeals for the Fifth Circuit held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act.

Title VII states:

(a) Employer practices

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

Resources:

Pregnancy Discrimination (U.S. Equal Employment Opportunity Commission) : information on employee protections related to pregnancy, childbirth, and related medical conditions.

Title IX of the Education Amendments of 1972 

Ā§ 106.40   Marital or parental status.

(a) Status generally. A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status which treats students differently on the basis of sex.

(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.

(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the separate portion is comparable to that offered to non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.

(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.

General Resources:

Where should you go for help? (US Breastfeeding Committee)  A list of organizations to contact according to the type of support needed.

Employment Protections for Workers Who Are Pregnant or Nursing   (U.S. Department of Labor): Describes federal employment laws protecting all workers in all states and territories.

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