• San Francisco Passes New Ordinance Requiring Further Lactation Accommodations for Mothers in the Workplace
  • August 16, 2017 | Authors: Richard S. Rosenberg; Justin Youngs
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • On June 30, 2017, San Francisco Mayor Ed Lee signed the city's new "Lactation in the Workplace Ordinance." Effective January 1, 2018, the ordinance requires lactation accommodation requirements beyond current federal and California state laws.

    Under the ordinance:

    • Break Time. Employers within the geographical boundaries of San Francisco must provide a reasonable break time and a lactation location for all employees desiring to express breast milk. The break time, if possible, should be provided concurrently with any break time already provided to employees.
    • Lactation Location. The "lactation location" provided must be a space other than a bathroom that is in close proximity to the employee's work area, and must be shielded from view and free from intrusion from co-workers and the public. Additionally, the ordinance states that the lactation location must "be safe, clean, and free of toxic or hazardous materials; contain a surface to place a breast pump and other personal items; contain a place to sit; and have access to electricity." The employer may satisfy the lactation location requirement by designating a room that is used for other purposes, provided that lactation accommodation takes priority.
    • Plumbing Requirements. The ordinance further requires employees to have access to a refrigerator and a sink with running water in close proximity to the employee's work area.
    • Written Policy. The ordinance requires employers to develop and implement a written Lactation Accommodation Policy. The policy, which must be distributed to all employees upon hiring, must notify employees of their right to request a lactation accommodation and identify a process for employees to request an accommodation.
    • Undue Hardship Defense. The ordinance provides for an undue hardship exemption for when the employer can show significant expense or operational difficulty in complying with the ordinance. However, if the employer invokes this exemption and denies an accommodation request, the employer must provide the employee a written response identifying the basis for the employer's denial of the request.
    • Enforcement. San Francisco's Office of Labor Standards Enforcement will begin enforcing the ordinance and issuing warnings starting January 1, 2018, and may begin imposing penalties up to $500 per violation starting January 1, 2019.

    San Francisco's "Lactation in the Workplace Ordinance" expands on current California law that applies to all employers outside of San Francisco. State law requires that all California employers provide a "reasonable amount" of break time for lactation. Employers must also make "reasonable efforts" to provide a private space for lactation, other than a toilet stall, in close proximity to the employee's work area. However, unlike the San Francisco ordinance, there is no requirement to provide access to a refrigerator and sink or to develop a written lactation accommodation policy. Violations of the California lactation accommodation law carry a $100 penalty per violation.

    Likewise, the San Francisco ordinance exceeds the requirements of federal law, which only requires that an employer provide a "reasonable break time" for employees for one year after the child's birth. An employer with less than 50 employees is exempt from the federal law if it can show undue hardship.

    With the new San Francisco ordinance going into effect in 2018, employers in San Francisco should take note of the further requirements and begin preparing a Lactation Accommodation Policy. You can find the San Francisco ordinance here ( LINK), which includes the language required for Lactation Accommodation Policies.

    All other employers in California and beyond should take this opportunity to refresh their memory of California and federal law to ensure compliance. The language of California law can be found here (LINK), and federal law here (LINK).