Employers' Questions Answered: San Francisco's Lactation in the Workplace Ordinance

San Francisco's Lactation in the Workplace Ordinance will become effective on January 1, 2018. The Ordinance imposes requirements that go beyond those that federal and California law already impose on employers and will require affected employers to update their employee handbooks.

What Employers Are Covered By The Ordinance?

Any person or entity with an employee who works in San Francisco. The City or any government entity are not employers under the Ordinance.

What Employees Are Covered By The Ordinance?

Any person who is employed within the geographic boundaries of San Francisco by an employer, including part-time employees.

What Are The New Requirements For Employers Under The Ordinance?

Employers covered by the Ordinance must:

Provide employees with a Lactation Location (defined as the space, room or location an employer must provide for an employee for the purposes of expressing breast milk); and

Develop and implement a Lactation Accommodation policy.

What Are The Requirements For A Lactation Location?

• Not a bathroom;
• In close proximity to the employee’s work area;
• Shielded from view and free from intrusion from co-workers and the public;
• Safe, clean and free of toxic or hazardous materials;
• Contains a surface (e.g., a table of shelf) to place a breast pump and other personal items;
• Has a place to sit; and
• Has access to electricity.

Additionally, employers must provide, in close proximity to the employee’s work area, access to a refrigerator where the employee can store breast milk and access to a sink with running water.

While the Lactation Location may include the place where the employee normally works if it otherwise meets these requirements, employers may also designate a room as a Lactation Location. This designated room may also be used for other purposes as long as the primary function of the room is a Lactation Location, its use as such takes priority over other uses, and the employer makes this known to its other employees.

Can Employers Be Exempt From The Lactation Location Requirements?

Yes, but only if the employer can establish an undue hardship. Undue hardship may exist if compliance would impose significant expense or operational difficulty on the employer when considered in relation to its size, financial resources, nature or business structure. For example, an employer might be exempt if compliance would require it to build a room, undertake a construction project, remove seating from a restaurant or remove retail floor space.

What Must Be Included In The Employer’s Lactation Accommodation Policy?

The Ordinance requires employers to develop and implement a Lactation Accommodation policy that includes:

• A statement that an employee has a right to request Lactation Accommodation (which is defined to include lactation breaks and a Lactation Location)
• A process by which an employee may request Lactation Accommodation including:
  
  • the means by which an employee may submit a Lactation Accommodation request;
  • a requirement that the employer responds to a Lactation Accommodation request within five business days; and
  • a requirement that the employer and employee engage in an interactive process to determine the appropriate Lactation Accommodation for the employee
• A statement that if the employer does not provide a Lactation Accommodation in line with this Ordinance, then it must provide the employee with a written response that identifies its basis for denying the employee’s request
• A statement that retaliation against an employee for exercising his or her rights under this Ordinance is prohibited

The Lactation Accommodation policy must be included in the employer’s employee handbook or set of policies. And the employer must distribute this policy to all employees upon hire and to any employee who inquires about or requests pregnancy or parental leave.

Are Employers Required To Keep Records of Lactation Accommodation Requests?

Yes, employers must maintain records of employee Lactation Accommodation requests for a period of three years. The record must include the employee’s name, the date of the request, and a description of how the employer resolved the request. Employers must allow the Office of Labor Standards Enforcement (OLSE) access to these records. If the employer fails to maintain records or does not allow the OLSE access to them, then a rebuttable presumption arises that the employer violated the Ordinance and it can only be rebutted by clear and convincing evidence to the contrary.

How Is The Ordinance Enforced?

The OLSE is responsible for enforcing the Ordinance. Beginning January 1, 2018, the OLSE will only issue employers warnings and notices to correct. Beginning January 1, 2019, after issuing a notice to correct and providing the employer with a reasonable amount of time to resolve the violation, the OLSE may impose administrative penalties up to $500 per violation and $50 per day for each employee as to whom the violation occurred.

The Ordinance does not expressly provide employees with a private right of action, but it remains to be seen whether courts would permit such actions against employers.

Next Steps For Covered Employers

Allen Matkins is available to help any employer with interpreting San Francisco’s Lactation in the Workplace Ordinance’s requirements and developing a Lactation Accommodation policy to include in its employee handbooks.