Nov 27

Got Milk? Take a Lactation Break

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California’s lactation accommodation law requires an employer to provide a “reasonable” amount of break time to accommodate an employee who desires to express breast milk for her infant child.

California law requires an employer to let a lactating employee take a “reasonable” amount of break time to express breast milk.

Researchers increasingly believe mother’s milk is essential to an infant’s health, growth, and development. California law recognizes the wonders of mother’s milk by protecting the right of every mother to breastfeed in any place, public or private, except for another person’s home.1 Unfortunately, many mothers who work full-time either hide that they’re breastfeeding or just opt not to breastfeed at all. The number one reason: they fear they will lose their jobs. If you’re breastfeeding, you don’t have to hide in the broom closet when the need to lactate arises. California law extends a woman’s right to breastfeed to the workplace and severely punishes an employer who violates that right.

How a Breastfeeding Mom Can Establish Her Right to a Lactation Break

California’s lactation accommodation law requires an employer to provide a “reasonable” amount of break time to accommodate an employee who desires to express breast milk for her infant child.2 The reasonableness of the length of a break depends on several factors and necessarily varies from case to case: the time the employee takes to walk to and from the lactation space and the time she waits to use that space; whether she needs to unpack and set up her own pump or whether her employer provides her with one; the efficiency of the pump; whether a sink is nearby for her to wash her hands and the pump attachments; and the time it takes for her to store her milk either in a refrigerator or personal cooler; etc.3

Of course, an employer can’t just tell a lactating employee to go pump breast milk in front of a cash register. He must make reasonable efforts to provide her a room or other location, other than a toilet stall, in close proximity to her work area, for her to express milk in private.4 The private room or location can include the place where the employee “normally works” – e.g., her office – but only if it otherwise complies with the lactation accommodation law. In other words, an employer can’t discharge his duty to accommodate a breastfeeding janitor by telling her to pump breast milk in a toilet stall – that would violate the law’s express requirement that the employer make reasonable efforts to provide her a location “other than a toilet stall.”5

The lactation accommodation law allows an employer to deny an employee a lactation break only if the break would “seriously disrupt” his operations.6 That’s not likely to happen. Most breastfeeding mothers lactate two or three times per day. If an employee uses a quality electric pump, she’ll be able to pump both breasts in as little as 10 minutes. Every nonexempt employee is entitled to a 10-minute rest break for every four hours of work or major fraction thereof,7 so if a breastfeeding nonexempt employee works eight hours per day, she’ll already be entitled to two 10-minute breaks. In other words, a couple of 10-minute lactation breaks per day probably won’t disrupt an employer’s operations.

How a Breastfeeding Mom Can Enforce Her Right to a Lactation Break

Of course, a woman might take more than 10 minutes to lactate. Similarly, her need to lactate might not coincide with her rest period. Inevitably, some employers will think they have the right to punish an employee because she has taken a break to lactate. Those employers are mistaken. California’s Fair Employment and Housing Act (FEHA) makes an employer’s failure to reasonably accommodate an employee with a condition related to pregnancy, childbirth, or a related medical condition – including lactation – an unlawful employment practice. The employee’s request for a lactation accommodation just has to be reasonable and based on the advice of her health care provider that such accommodation is medically advisable.8

 Moreover, FEHA prohibits an employer from discriminating against an employee in her compensation or in the terms, conditions, or privileges of employment because of her sex.9 That doesn’t just mean an employer can’t mistreat  an employee because the former thinks a woman shouldn’t do a “man’s work.” In fact, he can promote her to Vice President and still be liable for sex discrimination if he denies her a lactation break or makes her lactate in the copy room. The reason: discrimination against an employee because of pregnancy, childbirth, or breastfeeding, or a medical condition related to pregnancy, childbirth, or breastfeeding, is discrimination “because of sex.”10

  1. Civ. Code §43.3. 

  2. Lab. Code §1030. 

  3. See, e.g., 75 Fed. Reg. §80073 

  4. Lab. Code §1031. 

  5. Id. 

  6. Lab. Code §1032. 

  7. IWC Wage Orders. 

  8. 8 Cal. Code Regs. §§11035(a)(b), 11039(a)(2)(C). 

  9. Gov. Code §§12940(a). 

  10. Gov. Code §12926(r)(1). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.