Breastfeeding provides important benefits for mothers and their children.1 In fact, it’s recommended by both the World Health Organization and UNICEF.2 But how should working mothers handle breastfeeding their child?
Fortunately, California has adopted some important employment laws that protect mothers wishing to breastfeed their child. This article, written by an employment attorney, explains those laws.
- 1 Lactation Breaks at Work (to Pump)
- 2 Direct Breastfeeding in Public and at Work
- 3 Breastfeeding Accommodations
- 4 Breastfeeding Discrimination and Harassment at Work
- 5 Using Leave Time for Breastfeeding
- 6 Consequences of Legal Violations
- 7 How to Handle a Violation of Breastfeeding Rights
Lactation Breaks at Work (to Pump)
A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). Both state and federal laws require California employers to provide lactation breaks.3
The right to a lactation break does not apply if it would seriously disrupt the operations of the employer.4 This exception is hard to meet, however, and employers should be cautious before invoking it.
Duration of Lactation Breaks
The length of the lactation break must be a reasonable amount of time to express breast milk.5 This somewhat vague standard usually means that there are no strict time limits.
The U.S. Department of Labor has suggested that the act of expressing breast milk alone typically takes about 15 to 20 minutes, but a reasonable break time will usually be longer because the employee will likely require preparation before beginning.6
The appropriate length of the break will depend on a variety of factors. Those include:
- The frequency and number of breaks the nursing mother might need;
- The time it takes to walk to and from the lactation space and the wait, if any, to use the space;
- The time it takes the employee to retrieve her pump and other supplies from another location;
- The time it takes the employee to unpack and set up her own pump or if a pump is provided for her;
- The efficiency of the pump used to express milk (employees using different pumps may require more or less time);
- The time it take the employee to wash her hands before pumping and to clean the pump attachments when she is done expressing milk; and
- The time it takes for the employee to store her milk either in a refrigerator or personal cooler.7
When to Take Lactation Breaks
But if that isn’t possible, or if the employee requires additional break time to express milk, the employer is still required to allow the lactation breaks at other times.9
Location of the Lactation Break
Employers are required to make reasonable efforts to provide employees with a private area to express breast milk. The area must be in close proximity to the employee’s work area, and may not be a toilet stall.10
A private area, for these purposes, is one that is shielded from view and free from intrusion from coworkers and the public.11 If the employee’s normal work area is private and suitable, the employer is allowed to designate that area as the place for the employee to express their breast milk in private.12
Pay During Lactation Breaks
If the employee takes their lactation breaks at times other than their normal rest or meal breaks, the employer is not required to pay the employee during the lactation break.13
If the lactation break occurs at the same time that a paid break would otherwise occur for the employee, the break must be paid.
Requesting a Lactation Break
If new mothers desire to express breast milk at work, they should notify their employer of the need to do so. It is usually a good idea to put the request in writing, using respectful but concise language.
Employers are legally prohibited from retaliating against employees who request a lactation break.14 This means that an employee cannot be punished, fired, or treated unfairly for exercising the right to a lactation break.
Direct Breastfeeding in Public and at Work
In California, mothers have a right to breastfeed their child in any location, public or private.15 To exercise this right, the mother must be:
- Authorized to be in the location where they wish to breastfeed, and
- Somewhere other than the private home or residence of another person.16
This law strongly suggests that, if an employer allows children in the workplace or provides for on-site daycare, the employer must permit their employee to use their lactation breaks for the purpose of breastfeeding, rather than pumping.17
Importantly, however, employers do not have a legal obligation to permit parents to bring their children to work. Nor do California employers have an obligation to provide daycare facilities for working parents. So the right to directly breastfeed children at work is limited in application.
It should also be noted that California courts have not directly addressed the overlap between the right to breastfeed in public and the right to take lactation breaks. So, although the law seems to indicate that direct breastfeeding is a right for mothers who have their children at work, it isn’t entirely clear.
As mentioned above, employers are required to make reasonable efforts to provide employees with a private area, other than a toilet stall, to express breast milk.18 But California law also requires many employers to take additional steps to accommodate breastfeeding.
Employers in California are legally required to provide reasonable accommodations for employees with a condition related to pregnancy or childbirth.19 A reasonable accommodation is an adjustment to the employee’s work environment that can enable the employee to perform the essential functions of the job.20
For these purposes, lactation is a condition related to pregnancy or childbirth.21 As such, employers are required to accommodate the employee’s lactation-related needs.
Reasonable accommodations for lactating mothers will often include transferring the employee to a less strenuous or hazardous position.22
To exercise this right, the employee must request the accommodation with the advice of her health care provider.23 It is usually a good idea to put the requests in writing, and to save a copy of the request.
Employers are prohibited from retaliating against employees who request an accommodation for their pregnancy-related disability.24 This is true even if the requested accommodation is ultimately denied. In other words, an employee cannot be punished, fired, or treated unfairly for seeking an accommodation.
Breastfeeding Discrimination and Harassment at Work
In California, it is unlawful for an employer with five or more employees to discriminate against an employee on the basis of their sex.25
For these purposes, sex is defined to include breastfeeding or medical conditions related to breastfeeding.26 As such, employers of five or more employees are prohibited from discriminating against employees for reasons related to breastfeeding.27
Likewise, employers are prohibited from harassing women for reasons related to breastfeeding.28 The protections against workplace harassment are broader than those against discrimination—they apply regardless of the employer’s size,29 and they cover women who aren’t technically employees.30
The result of these laws is that women may not be treated unfairly or improperly because they desire to breastfeed, take lactation breaks, or pump (whether at home or work).31
Using Leave Time for Breastfeeding
Many working mothers have a right to enjoy certain periods of unpaid leave time as a matter of law. In the context of pregnancy and breastfeeding, the main two types of leave are as follows:
- Up to 12 weeks of leave to bond with the child,32 and
- Up to four months of pregnancy disability leave.33
An employee’s right to these types of leave will depend on a variety of factors, including how long they have worked for their employer, how many employees the employer has, and how many hours the employee has worked in the past year for the employer.34
But, if an employee has a right to both types of leave, they can be applied cumulatively.35 This means that an employee might be entitled to nearly seven months of total leave time during or after their pregnancy.36
Importantly, the two types of leave serve very different purposes. If an employee is entitled to receive leave to bond with their child, they have a right to take that leave regardless of whether they are breastfeeding.37
In contrast, pregnancy disability leave is only available to women who have been disabled by the pregnancy or childbirth in some way.38 In general, lactation is not a disabling condition for these purposes.39
So an employee cannot usually use pregnancy disability leave to breastfeed. If, however, the worker has medical complications related to lactation, they may have a right to use pregnancy disability leave for purposes related to breastfeeding.40
It is also possible that, if an employee is disabled by a condition related to breastfeeding or lactation, their employer will be required to provide them with time off in addition to their four months of pregnancy disability leave to accommodate their disability.41
Consequences of Legal Violations
If an employer fails to provide their employees with a lactation break, they can be required to pay a civil penalty of $100.00 for each violation.42 In some cases, part of that penalty can be recovered by the employee.43
Similarly, if the employer discriminates against a breastfeeding employee, they can be held liable for substantial damages. Those damages might include:
- Compensatory Damages. Money to compensate the mother for any harm she suffered. Examples of this type of relief include money for lost wages, unpaid wages, or medical expenses.44
- Punitive Damages. Money to punish the employer for their wrongful actions. These are especially likely if the employer retaliated against the employee for enforcing their breastfeeding-related rights.45
- Legal Expenses. Money to pay the employee’s litigation-related costs, including attorney fees, court fees, and expert witness fees.46
Clearly, a violation of California’s laws that protect nursing mothers can be costly. It is usually best for employers to play it safe and accommodate nursing mothers to the greatest extent possible.
How to Handle a Violation of Breastfeeding Rights
Victimized employees have several options. Depending on the type of right that was violated, those options usually include:
- Resolve the dispute informally with the employer,
- File a complaint with an administrative agency, or
- File a civil lawsuit.
The best course will depend on a number of factors specific to the employee’s situation, including the type of right that was violated and the extent of the employee’s suffering.
Importantly, employers are generally prohibited from retaliating against employees who exercise or seek to enforce their rights.47 As such, employees cannot be punished, fired, or treated unfairly for reporting violations of their breastfeeding rights.
It is often a good idea to have an employment attorney assist with pursuing these options. They can evaluate the type of claim, recommend the best course of action, and negotiate the matter on the employee’s behalf.
Importantly, however, the deadline to file claims is often short. So it is usually a good idea for employees to act fast if they wish to enforce their rights.
See WebMD, Breastfeeding Overview.Footnote 1
- Footnote 2
Labor Code, §§ 1030–1033; 29 U.S.C. § 207(r) [applying only to employers with 50 or more employees if such requirements would impose an undue hardship].Footnote 3
Labor Code, § 1032 [“An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.”]; see also 29 U.S.C. 207(r)(3) [“An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”].Footnote 4
Labor Code, § 1030 [“Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child”]; 29 U.S.C. § 207(r) [“An employer shall provide– (A) a reasonable break time for an employee to express breast milk for her nursing child . . . .”].Footnote 5
Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80075 (Dec. 21, 2010).Footnote 6
Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80075 (Dec. 21, 2010).Footnote 7
Labor Code, § 1030 [“The break time shall, if possible, run concurrently with any break time already provided to the employee.”].Footnote 8
Labor Code, § 1030.Footnote 9
Labor Code, § 1031 [“The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”].Footnote 10
29 U.S.C. 207(r)(1)(B) [An employer shall provide . . . a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”].Footnote 11
Labor Code, § 1031 [“The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.”].Footnote 12
Labor Code, § 1030 [“Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.”]; 29 U.S.C. 207(r)(2) [“An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.”].Footnote 13
Labor Code, § 98.6, subd. (a) [“A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because . . . of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.”].Footnote 14
Civil Code, § 43.3.Footnote 15
Civil Code, § 43.3 [“Notwithstanding any other provision of law, a mother may breastfeed her child in any location, public or private, except the private home or residence of another, where the mother and the child are otherwise authorized to be present.”].Footnote 16
Compare Labor Code, § 1030, with Civil Code, § 43.3.Footnote 17
Labor Code, § 1031 [“The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”].Footnote 18
Gov’t Code, § 12945, subd. (a)(3) [prohibiting employers from “refus[ing] to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.”].Footnote 19
Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.Footnote 20
Cal. Code of Regs., tit. 2, § 11035, subd. (d) [“A ‘condition related to pregnancy, childbirth, or a related medical condition,’ as set forth in Government Code section 12945, means a physical or mental condition intrinsic to pregnancy or childbirth that includes, but is not limited to, lactation.”].Footnote 21
Cal. Code of Regs., tit. 2, § 11035, subd. (d).Footnote 22
Gov’t Code, § 12945, subd. (a)(3)Footnote 23
Gov’t Code, § 12940, subd. (m)(2).Footnote 24
Gov’t Code, § 12940, subd. (a) [defining sex discrimination as a type of unlawful employment practice, unless based upon a bona fide occupational qualification].Footnote 25
Gov’t Code, § 12926, subd. (r)(1)(C) [“‘Sex’ includes, but is not limited to, the following: . . . Breastfeeding or medical conditions related to breastfeeding.”].Footnote 26
Gov’t Code, §§ 12926, subd. (r)(1)(C), 12940, subd. (a).Footnote 27
Gov’t Code, § 12940, subd. (j)(1) [prohibiting sex harassment of any employee, applicant, unpaid intern, volunteer, or a person providing services pursuant to a contract].Footnote 28
Gov’t Code, § 12940, subd. (j)(4)(A) [“For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.”].Footnote 29
Gov’t Code, § 12940, subd. (j)(1) [applying to employees, applicants, interns, volunteers, and independent contractors].Footnote 30
See also Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80078 (Dec. 21, 2010) [“If an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII.”].Footnote 31
See Gov’t Code, § 12945.2.Footnote 32
See Gov’t Code, § 12945.Footnote 33
Gov’t Code, §§ 12945, 12945.2.Footnote 34
Gov’t Code, § 12945.2, subd. (s) [“An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.”].Footnote 35
Gov’t Code, §§ 12945, 12945.2.Footnote 36
Gov’t Code, § 12945.2Footnote 37
Gov’t Code, § 12945, subd. (a)(1).Footnote 38
Cal. Code of Regs., tit. 2, § 11035, subd. (d) [“Generally lactation without medical complications is not a disabling related medical condition requiring pregnancy disability leave, although it may require transfer to a less strenuous or hazardous position or other reasonable accommodation.”].Footnote 39
Gov’t Code, § 12945; Cal. Code of Regs., tit. 2, § 11035.Footnote 40
See Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1339–1341 [holding that an employer’s obligations to provide accommodations under the Fair Employment and Housing Act are still required when the employee has exhausted their leave time under the Pregnancy Disability Leave Law].Footnote 41
Labor Code, § 1033, subd. (a) [“An employer who violates any provision of this chapter shall be subject to a civil penalty in the amount of one hundred dollars ($100) for each violation.”].Footnote 42
Labor Code, §§ 2698–2699.5 [the Labor Code Private Attorneys General Act of 2004].Footnote 43
Gov’t Code, § 12965, subd. (c) [“A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part.”].Footnote 44
Peatros v. Bank of America (2000) 22 Cal.4th 147, 166–167 [FEHA “allows the employee to obtain ‘all relief generally available,’ specifically ‘in noncontractual actions’ [citations], including ‘unlimited compensatory and punitive damages’ [citations].”]; see also Labor Code, §§ 98.6, 1102.5, 1197.5 [prohibiting retaliation]; Gov’t Code, § 12940, subd. (m) [same].Footnote 45
Gov’t Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 46
Labor Code, §§ 98.6, 1102.5, 1197.5; Gov’t Code, § 12940, subd. (m).Footnote 47