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San Francisco Enacts Local Lactation Accommodation Ordinance
Aug 14, 2017

San Francisco Enacts Local Lactation Accommodation Ordinance

Topics: New Laws & Legislation

Over the last several years, San Francisco has enacted a number of local ordinances imposing new mandates on employers who have employees working in the City.  City lawmakers are at it again, this time concerning the issue of lactation accommodation in the workplace.  Even though there are already state and federal laws requiring employers to provide lactation accommodations to nursing moms, San Francisco has (unnecessarily) adopted its own local ordinance on the topic.

Under the local ordinance, which takes effect January 1, 2018, private employers who employ workers in the City of San Francisco (including part-time workers) are required to provide a reasonable amount of break time to any such worker for the purpose of expressing breast milk for the employee's child.  The break time will run concurrently with any paid rest break time already required to be provided to the employee.  However, if more break time is required for purposes of expressing milk, such break time may be unpaid.

Employers also must provide a lactation location, other than a bathroom, in close proximity to the employee 's work area that is shielded from view and free from intrusion from coworkers and the public.  The location must be (1) safe, clean, and free of toxic or hazardous materials; (2) contain a surface (e.g. a table or shelf) to place a breast pump and other personal items; (3) contain a place to sit; and (4) have access to electricity.  The employer must further 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.  The lactation location can be the place where the employee normally works if it otherwise meets these requirements.  The lactation room/location can be used for other purposes so long as employees have notice that its primary use is for lactation accommodation and this use takes precedence over other uses.

Where there is more than one employer in a building and an employer cannot provide a lactation location within its own workplace, it may provide one in the building that is shared among employers so long as the location is sufficient to accommodate the needs of employees and meets the requirements of the ordinance.

An employer may establish an exemption from these requirements only if it would pose an undue hardship on the employer to comply by causing the employer significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer's business.  Examples of an undue hardship may include things like requiring the employer to build a room, undertake a construction project, remove seating from a restaurant, or remove retail floor space.

The foregoing requirements are very similar to existing California state and federal law (and interpretive guidance) concerning lactation accommodation in the workplace.  Beyond these similar requirements, however, San Francisco also requires covered employers to develop and implement a policy concerning lactation accommodation that includes a statement that employees have a right to request lactation accommodation and identifies a process by which an employee may request lactation accommodation.  That process must require the employer to respond to a request for lactation accommodation within five business days and require the employer and employee to engage in an interactive process to determine the appropriate lactation break period(s) and the lactation location for the employee.  The policy also must explain that if the employer does not provide lactation breaks and/or a lactation location that complies with the requirements of the ordinance, the employer will provide the employee a written response that identifies the undue hardship basis for denying the requested accommodation. Finally, the policy must state that employees will not be retaliated against for exercising rights protected by the ordinance. The policy must be distributed to all employees upon hire and must be included in any employee handbook maintained by the employer.  The policy must also be offered to any employee who inquires about or requests pregnancy or parental leave.

The ordinance also includes a records retention requirement.  Specifically, employers must retain records relating to any lactation accommodation requests, and the employer's response, for three years.  Failure to maintain such records will result in a presumption of a violation of the ordinance (in the event an employee alleges non-compliance), unless the employer can prove compliance by other clear and convincing evidence.  

The full text of the San Francisco ordinance is available here.

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