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San Francisco Passes “Lactation in the Workplace Ordinance”

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On June 30, 2017, San Francisco’s Mayor Ed Lee signed an ordinance, providing employees in the City of San Francisco with additional lactation rights.  The “Lactation in the Workplace Ordinance,” will take effect on January 1, 2018 and applies to all City employees, including those who work part-time.  The ordinance is similar to existing state and federal law, but contains additional requirements.

What Does The Ordinance Require?

Location Specifics

Employers must provide a lactation location other than a bathroom that is in close proximity to the employee’s work area.  The location must be shielded from view and free from intrusion from co-workers and the public.   It must have the following features:

1)      Safe, clean, and free of toxic or hazardous materials;

2)      Contain a surface (e.g. a table or shelf) to place a breast pump and personal items;

3)      Contain a place to sit;

4)      Have a door that locks from within;

5)      Be at least 50 square feet; and

6)      Have at least one electrical outlet per lactation station.

The room must be located within 500 feet or two adjacent floors from the farthest employee it is designated to serve.  The employer must also provide a refrigerator where the employee can store breast milk and access to a sink with running water

The lactation location can be a room that is also used for other purposes, so long as the employer provides notice that the primary use of the room is for lactation which takes precedence over other uses.

An employer may be exempt from the ordinance’s requirements if it can establish that the requirements would impose an undue hardship (significant expense or operational difficulty in relation to the employer’s size, financial resources, nature, location, or physical space).

            Employer Policy

Employers must develop and implement a written Lactation Accommodation Policy.  The policy must:

1)      State that employees have a right to request lactation accommodation,

2)      Identify a process by which an employee may request lactation accommodation, (including how an employee may submit a request, a requirement that the employer respond within 5 business days, and a requirement that the employer and employee engage in an interactive process to determine the appropriate lactation breaks and location);

3)      If the employer is exempt from the ordinance’s requirements, the employer must state the basis for denial of the lactation accommodation; and

4)      Prohibit retaliation against an employee for exercising her rights under this ordinance.

The Lactation Accommodation Policy must be distributed to all employees upon hiring and offered to any employee who asks about or requests pregnancy or parental leave.  If the employer has an employee handbook or policies, the Lactation Accommodation Policy must be included.

Employer Record Retention Requirement

Employers are required to maintain specific records of requests for lactation accommodation made pursuant to the employer’s policy, for 3 years.

            Enforcement and Penalties

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with enforcing the law and giving notices to correct.  After a one-year grace period, beginning January 1, 2019, the OLSE may impose administrative penalties up to $500 for each violation

Existing State and Federal Requirements

The ordinance combines and expands upon existing federal and state laws that already address lactation in the workplace.  (See 29 U.S.C §207(r); Cal. Labor Code 1030-1033.)  Among other expansions of the law, neither federal nor California law currently requires as many specific features of the lactation room, a formal written policy, or recordkeeping and retention.

Please consult legal counsel for details regarding the ordinance’s specific requirements.  We recommend reviewing and updating your existing lactation accommodation policies before January 1, 2018.