On June 30, 2017, San Francisco enacted the “Lactation In The Workplace Ordinance.” It expands federal and California law regarding lactation in the workplace. If commercial lease rates in the City weren’t high enough, this Ordinance ensures that employers will
need more space.
Although California law requires employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area, to express
milk in private, and the Fair Labor Standards Act requires employers to provide a reasonable break time for an employee to express breast milk for one year after the child’s birth and in a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. The Ordinance adds that the room be safe, clean and free of toxic or hazardous materials, contains a surface to place a breast pump and other personal items, have a place to sit and access to electricity; and have access to a refrigerator and a sink.
While the room may be used for multiple purposes, employees must be put on notice that lactation takes precedence over other uses for the room.
The Ordinance also requires every employer maintain a written lactation accommodation policy that includes the following:
- A statement of the right to request a lactation accommodation.
- A process for requesting an accommodation. This process shall:
- specify the means by which an employee may submit a request;
- require the employer to respond to any such request for accommodation within 5 business days; and
- require the employer and employee to engage in an interactive process to determine the appropriate accommodations.
- State that if in response to a request for accommodation the employer does not provide the accommodation, the employer must provide a written response which identifies the basis for denial of the request.
- Notice that retaliation in response to a request is prohibited.
The policy must be provided to employees when they are hired; must be included in any handbook; and must be provided to any employee who asks about or requests pregnancy or parental leave.
The Ordinance also imposes additional record keeping requirements on San Francisco employers. It requires employers keep records of employee requests for lactation accommodations for three years that include the employee’s name, the date of the request, and a
description of how the employer addressed the request.
There is a hardship exemption in the Ordinance. The requirements of the Ordinance can be avoided only if they would impose an undue hardship on the employer, such as requiring construction or reducing retail capacity or space.
We do not know to what extent the City is likely to enforce this Ordinance. We will continue to keep you abreast of all developments.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
