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Pumping at Work: California Expands Protections for Nursing Mothers in the Workplace (To All Workers in the State)

BPump

So, you’re finally ready to go back to work after giving birth to your child, but what are you going to do about pumping? Mothers returning to work following childbirth may worry about balancing the difficulties with continuing to nurse their child while maintaining a full-time job.

Recently, the California legislature enacted new rules designed to help protect the rights of nursing mothers to express their breast milk while at work. These rules extend protections previously adopted by the federal government as part of the Affordable Care Act (ACA).

Assembly Bill 1976

On September 30, 2018, Gov. Jerry Brown signed into law Assembly Bill (AB) 1976. This law modifies the California Labor Code’s existing provisions regarding employee lactation rights in the workplace. Under the current provision, known as Section 1031, an employer is required to “make reasonable efforts” to give a nursing employee “the use of a room or other location, other than a toilet stall,” to express their milk. This location should be near the employee’s existing work area–and may in fact be her work area if it “otherwise meets the requirements” of the section. Commonly, employees are offered pumping “accommodations” in a toilet stall – and under California state law (and federal law), this is illegal.

While regulations about pumping in the workplace are not new to California or federal law, AB 1976 significantly replaces previous state law (Section 1031) with new language that does several things. For starters, an employer must now provide a lactation room or location “other than a bathroom,” as opposed to somewhere “other than a toilet stall.” In addition, an employer who provides a “temporary lactation location” is only in compliance with the law if it meets all of the following conditions:

  1. The employer cannot provide a permanent lactation room due to “operational, financial, or space limitations.”
  2. The location is “private and free from intrusion” while in use by the nursing employee.
  3. The location is “used only for lactation purposes” while an employee is expressing milk.
  4. The location otherwise meets any other legal requirements regarding “lactation accommodation.”
  5. In the case of farms and other agricultural employers, it is acceptable for the employer to provide a “private, enclosed, and shaded space,” such as the “air-conditioned can of a truck or tractor.”
  6. An employer may still require a nursing employee to use a bathroom for lactation if it can demonstrate to the State of California that providing some other room or location would “impose an undue hardship” based on the “size, nature, or structure” of the employer’s business.

California Law vs. the Fair Labor Standards Act

The sponsors of AB 1976 noted their bill was a response to a series of 2010 amendments to federal labor law–specifically, the Fair Labor Standards Act (FLSA)–enacted by Congress as part of the ACA. As the FLSA currently stands, employers must provide employees with “reasonable break time … to express for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The FLSA states the employer must also provide a lactation room or location “other than a bathroom.”

But as the sponsors of AB 1976 explained, the federal rules only apply to employees classified as “non-exempt” under the FLSA. In practice, this excludes a large number of professional and administrative workers. By contrast, California’s lactation protections, as amended by AB 1976, cover all employees in the state.

If you have any questions or concerns about how AB 1976 affects your rights in the workplace as a nursing mother, you should contact a qualified California employment law attorney right away.

Resource:

leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1976

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