30 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com California’s lactation benefits are already extended to all employees, not just nonexempt employees.14 Since 2002 California has entitled employees to take unpaid breaks to express milk in a private location (other than a toilet stall), in close proximity to the work area, unless this break time would “seriously disrupt the operations of the employer.”15 In 2019 California went further. Inspired by the San Francisco ordinance, the legislature passed a new version of mandatory lactation accommodation, requiring employers to provide a lactation room with specific characteristics: not a bathroom; shielded from view; free from intrusion while the employee is lactating; safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; and having access to electricity or alternative devices (e.g., extension cords, charging stations) needed to operate an electric or battery-powered breast pump. While a sink and refrigerator (or other cooling device suitable for storing milk) do not necessarily have to be in the lactation room, they must be in “close proximity” to the employee’s workspace.16 If a multipurpose room is used for lactation and other uses, then lactation must take precedence over the other uses. California law makes denial of lactation break time or space an unlawful denial of a rest break, and subjects the employer to a $100 penalty per violation. Further, the PUMP Act gives employees a private right of action under the FLSA that could make employers liable for liquidated, compensatory, and punitive damages. California also requires employers to develop and implement a written policy regarding any lactation accommodations. The policy must describe the employee’s right to file a complaint with the Labor Commissioner for an alleged violation, must appear in the employer’s handbook or other written policies, and must be distributed to new hires and to employees who ask about or request parental leave rights.17 California prohibits retaliation against any employee attempting to exercise any right the law creates.18 Employers with fewer than 50 employees may be exempt if they can show that compliance would cause undue hardship. However, such employers must make reasonable efforts to provide a lactation room that is not a toilet stall and that is in close proximity to the employee’s work area. The FEHA also includes breastfeeding and related medical conditions within its very expansive definition of “sex” (see § 6.2), and thus forbids California employers from discriminating against those who breastfeed. Note that while the California Labor Code specifies that breaks must be provided when the employee needs to express milk “for the employee’s infant child,” an employee expressing milk for another purpose (e.g., donation) should be accommodated under the FEHA.19 San Francisco ordinance. San Francisco employers must provide, for employees who want to express milk, a clean, private space that includes a place to sit, has access to electricity, and has a surface space for a breast pump. The space must be in close proximity to a sink with running water and a refrigerator. If such a space does not exist, then the employer must create it, unless doing so would impose an undue hardship. San Francisco employers must provide notice of their lactation accommodation policy to employees upon hiring, and whenever employees ask about pregnancy or parental leave.20 2.3 Family Care and Medical Leave Before 2021, the employers covered under the California Family Rights Act aligned with the federal Family and Medical Leave Act. That is no longer true. The CFRA now applies to employers with as few as five employees21 (unlike the 50-employee threshold applying under the FMLA). The CFRA also no longer includes a geographical requirement for employee eligibility (while the FMLA continues to require that an employee work at or report to a location with at least 50 employees within 75 miles).22 Accordingly, employees now can be eligible for CFRA leave if they work for a covered employer with five or more employees. The 2020 CFRA amendments also eliminated the previous carve-out that existed for certain highly paid or key employees.23
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