Employees in California have the right to breastfeed at work. Employers have to make reasonable accommodations for lactating mothers. However, these rights and accommodations are often limited to pumping, not directly breastfeeding a newborn. If an employer does not make those accommodations, it can amount to workplace discrimination.
What are breastfeeding rights in the workplace?
Both California state law and federal laws forbid workplace discrimination on the basis of sex and pregnancy. This covers mothers of newborn babies who need to breastfeed.
The federal Pregnancy Discrimination Act altered the meaning of Title VII of the Civil Rights Act to cover discrimination based on:
Those related medical conditions include breastfeeding.[2]
Additionally, the Fair Labor Standards Act (FLSA) gives employees a right to take lactation breaks to express milk for up to a year after the child’s birth.[3] However, the FLSA does not cover employers who:
- have fewer than 50 employees, and
- would face significant difficulty or expense in order to provide lactation breaks.[4]
California law also forbids workplace discrimination based on sex and pregnancy. It gives breastfeeding employees a right to take reasonable lactation breaks during the workday, as well.[5]
These breastfeeding rights do not include lactation breaks that:
- would constitute a serious disruption or undue hardship in the workspace,[6] or
- are for non-infant children or for a child that is not the employee’s.[7]
None of these laws, however, give California employees the right to bring a newborn child into the workplace with them. As a result, an employee’s right to express milk or take lactation breaks is limited to the right to pump, not directly breastfeed a newborn.
When can a mother breastfeed at work?
If possible, employees are supposed to lactate during one of their normal rest or meal breaks. If this is not possible, though, employers still have to accommodate the worker.[8]
The duration of these lactation breaks has to be reasonable.[9] Federal regulations suggest that a reasonable amount of break time is usually between 15 and 20 minutes, but that other factors can make them take longer, like:
- whether the designated lactation space is in close proximity to the worker’s normal work area or worksite,
- whether there is a wait to use the lactation room,
- time spent by the employee to retrieve the breast pump or other lactation supplies,
- time spent setting up the pump,
- the speed and effectiveness of the pump,
- how far away the nearest sink is to clean up before and after pumping, and
- how long it takes the employee to store the milk.[10]
Where can she breastfeed or pump?
Both federal and California lactation accommodation laws require employers to provide breastfeeding mothers with a private lactation area that is not a bathroom or toilet stall. To be a private space, it has to be shielded from view, and has to be a place where coworkers or members of the public can be kept from entering. In some cases, this can be the employee’s work area or office.[11]
Is the lactation break paid?
Lactation breaks are unpaid in California under both state and federal law.[12]
However, if an employee uses one of her normal rest or meal breaks to express milk, then they are still entitled to get paid during the break. Just because they use a paid break to express breast milk does not turn it into an unpaid break.
California employers must provide reasonable accommodations to lactating employees.
Does California law require employers to make lactation accommodations?
Yes, California employers have to provide reasonable accommodations to lactating employees in order to avoid committing pregnancy or sex discrimination.
In addition to making reasonable efforts to provide a space for new mothers to lactate and with the break time to do so, employers may also have to do things like:
- transfer the employee to a less stressful or dangerous position,
- alter the worker’s schedule, or
- move the employee’s office so it can be nearer to the lactating area.[13]
Workers who want one of these accommodations should put their request in writing, and support it with advice from her health care provider.
What if my employer is violating these rights?
Employers who violate a worker’s right to breastfeed in the workplace can be committing workplace discrimination in violation of the California Fair Employment and Housing Act (FEHA).
Victims can file a complaint with the Labor Commissioner’s Bureau of Field Enforcement (BOFE). They can also file a lawsuit and recover damages for:
- unpaid wages from lactation breaks,
- other forms of compensation, and
- attorneys’ fees and court costs.
Additionally, the employer can be subjected to a civil penalty of $100 for each time they violated their employee’s right to breastfeed.
[1] 42 USC 2000e(k)(2).
[2] Vazquez v. Wolf, No. 18-cv-07012-JCS (N.D. Cal. Jun. 17, 2020).
[3] 29 USC 207(r).
[4] 29 USC 207(r)(3).
[5] California Labor Code 1030 LAB.
[6] California Labor Code 1032 LAB.
[7] California Labor Code 1030 LAB.
[8] California Labor Code 1030 LAB.
[9] California Labor Code 1030 LAB and 29 USC 207(r).
[10] Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. 80073 (Dec. 21, 2010).
[11] California Labor Code 1031 LAB and 29 USC 207(r)(1)(B).
[12] California Labor Code 1030 LAB and 29 USC 207(r)(2).
[13] California Government Code 12945 GOV and 2 Cal. Code of Regs. 11035(d).
