An employee returns from parental leave and asks where she can express milk during the workday. The answer cannot be a bathroom stall, and it cannot be “we will figure it out.” California requires every employer to provide break time and a compliant space, and to have a written policy in place before anyone asks.

Break Time

Under California Labor Code section 1030, every employer must provide a reasonable amount of break time to accommodate an employee who wants to express breast milk for her infant child. The break time should run concurrently with any rest break already provided, if possible. Time that does not run concurrently may be unpaid. The law does not set a number of breaks or a length, so the amount depends on the employee's needs.

The Lactation Space

California Labor Code section 1031 requires a room or other location where the employee can express milk in private. The space must:

• Not be a bathroom, and be close to the employee's work area.
• Be shielded from view and free from intrusion while in use.
• Be safe, clean, and free of hazardous materials.
• Have a surface for a pump and personal items, a place to sit, and access to electricity or alternative power for the pump.
• Have a sink with running water and a refrigerator or other suitable cooling device nearby.

If the room serves another purpose, lactation use takes priority while the employee needs it. An employer that cannot provide a permanent space may use a temporary one if it meets the same standards.

Exceptions

The exceptions are narrow. An employer does not have to provide break time if doing so would seriously disrupt its operations (California Labor Code section 1032). An employer with fewer than 50 employees may be exempt from a space requirement if it can show undue hardship, but it must still make reasonable efforts to provide a private location other than a toilet stall. If an employer cannot provide break time or a compliant space, it must give the employee a written response.

The Written Policy

California Labor Code section 1034 requires every employer to develop and implement a lactation accommodation policy. The policy must state:

• The employee's right to request lactation accommodation.
• The process for making a request.
• The employer's obligation to respond.
• The employee's right to file a complaint with the Labor Commissioner.

The policy must be included in the employee handbook or set of policies, and it must be given to each new employee at hire and to any employee who asks about or requests parental leave.

Consequences of Getting It Wrong

Denying reasonable break time or an adequate space is treated as a failure to provide a rest period for purposes of California Labor Code section 226.7, which can create premium pay liability. The Labor Commissioner may also assess a civil penalty of $100 for each day an employee is denied break time or adequate space. An employer may not retaliate against an employee who requests or uses lactation accommodation. California also treats breastfeeding as part of sex discrimination under the Fair Employment and Housing Act.

Common Mistakes

• Relying on a bathroom or a supply closet as a compliant option. 
• Having no written policy, or a policy that omits one of the required statements.
• Giving the policy only to new hires and not to employees who ask about parental leave.
• Treating all lactation breaks as unpaid, when breaks that run concurrently with paid rest breaks are paid.
• Denying a request verbally without the required written response.
• Assuming a small employer is automatically exempt.

Lactation Accommodation Compliance Checklist

• Identify a private space that is not a bathroom, near employees' work areas, with a surface, a seat, power, a sink, and refrigeration.
• Adopt a written policy with all four required statements.
• Add the policy to your handbook.
• Give the policy to new hires and to any employee who asks about or requests parental leave.
• Train managers to respond to requests promptly and not to deny them informally.
• Prepare a written response template for the rare case you cannot comply.
• Set up a plan for remote, field, and travel employees.
• Review the policy each year.

Frequently Asked Questions

How many breaks must I allow, and for how long?
A reasonable amount, which depends on the employee. The law does not set a number or duration.

Are lactation breaks paid?
They are paid when they run concurrently with paid rest breaks. Additional time may be unpaid.

Can the space be a bathroom?
No. It must be a private location other than a bathroom, close to the employee's work area.

Do I need a written policy if I have only a few employees?
Yes. The written policy requirement applies to every employer.

When can I deny a request?
Only when providing break time would seriously disrupt operations, or when a small employer can show undue hardship for the space requirement. Give the employee a written response.

What You Should Do Now

Check whether your handbook has a lactation policy with all four required statements, and whether you can identify a compliant space today. If a request arrived tomorrow, you should be able to answer it the same day.

If you want help drafting a lactation accommodation policy or reviewing your handbook, I can help. Schedule a consultation today.

Schedule a Consultation: https://www.chukwuekelaw.com/contact-us

Disclaimer: This post is for informational purposes only and does not constitute legal advice or create an attorney-client relationship. The information in this post reflects the law as understood at the time of publication. Statutory details, including specific requirements, penalties, and coverage thresholds, should be verified against the enacted text and any applicable agency guidance.