Workplace Breastfeeding Laws in California

Breastfeeding provides important health benefits for mothers and their children,⁠1 and it is recommended by both the World Health Organization and UNICEF.⁠2 So how should a new mother handle breastfeeding once she returns to work?

California law gives nursing employees several overlapping protections. Employers must provide reasonable break time and a private space, other than a bathroom, to express breast milk;⁠3 they may not discriminate against or harass an employee because she is breastfeeding;⁠4 and many mothers also have rights to pregnancy-related accommodations and leave.⁠5

This article, written by an employment attorney, explains those laws and how to enforce them.

Lactation Breaks at Work (to Pump)

A lactation break is a period of time during the workday for nursing mothers to express breast milk (in other words, a break to pump). Both state and federal law require California employers to provide lactation breaks.⁠6 The federal right was expanded in 2022 to cover nearly all employees, including many salaried and exempt workers, for up to one year after a child’s birth; California’s protections are generally broader.⁠7

The right to a lactation break does not apply if providing it would seriously disrupt the employer’s operations.⁠8 This exception is hard to meet, however, and employers should be cautious before relying on it.

Duration of Lactation Breaks

The length of the lactation break must be a reasonable amount of time to express breast milk.⁠9 This somewhat vague standard usually means that there are no strict time limits.

The U.S. Department of Labor has observed that expressing breast milk itself typically takes about 15 to 20 minutes, but a reasonable break will usually be longer because the employee will likely need time to prepare beforehand.⁠10

The appropriate length of the break will depend on a variety of factors. Those include:

• The frequency and number of breaks the nursing mother might need;
• The time it takes to walk to and from the lactation space and the wait, if any, to use the space;
• The time it takes the employee to retrieve her pump and other supplies from another location;
• The time it takes the employee to unpack and set up her own pump, or if a pump is provided for her;
• The efficiency of the pump used to express milk (employees using different pumps may require more or less time);
• The time it takes the employee to wash her hands before pumping and to clean the pump attachments when she is done expressing milk; and
• The time it takes for the employee to store her milk either in a refrigerator or personal cooler.⁠11

When to Take Lactation Breaks

If the employee is entitled to take rest or meal breaks, she should try to take the lactation break at the same time.⁠12

But if that isn’t possible, or if the employee needs additional break time to express milk, the employer must still allow lactation breaks at other times.⁠13

Location of the Lactation Break

Employers must provide nursing employees with the use of a room or other location, other than a bathroom, to express breast milk in private.⁠14 This is a firm requirement, not merely a matter of “reasonable efforts”: since 2020, California law directs that the employer shall provide a compliant space.⁠15

The lactation space must be close to the employee’s work area, shielded from view, and free from intrusion while she is expressing milk.⁠16 It must also be safe, clean, and free of hazardous materials; contain a surface for a breast pump and personal items; contain a place to sit; and provide access to electricity (or an alternative, such as an extension cord or charging station) to run a breast pump.⁠17

The employer must also provide access to a sink with running water and a refrigerator suitable for storing milk, or another cooling device such as a cooler, close to the employee’s workspace.⁠18 If the employee’s normal work area is private and otherwise meets these requirements, the employer may designate that area as the place to express milk.⁠19

Pay During Lactation Breaks

If the employee takes lactation breaks at times other than her normal rest or meal breaks, the employer is not required to pay her for the lactation break.⁠20

If the lactation break occurs at the same time as a paid break the employee would otherwise take, the break must be paid.

Requesting a Lactation Break

A nursing mother who wants to express breast milk at work should notify her employer of the need to do so. It is usually a good idea to put the request in writing, using respectful but concise language.

California employers must also maintain a written lactation-accommodation policy that explains how to request a lactation break, the employer’s duty to respond, and the employee’s right to file a complaint with the Labor Commissioner.⁠21 If the employer cannot provide compliant break time or space, it must respond to the employee’s request in writing.⁠22

Employers are legally prohibited from retaliating against an employee for requesting or taking a lactation break.⁠23 An employee cannot be punished, fired, or treated unfairly for exercising the right to a lactation break.

Direct Breastfeeding in Public and at Work

In California, a mother has a right to breastfeed her child in any location, public or private.⁠24 To exercise this right, the mother and child must be:

• Authorized to be in the location where they wish to breastfeed, and
• Somewhere other than the private home or residence of another person.⁠25

This law strongly suggests that, if an employer allows children in the workplace or provides on-site daycare, the employer must permit an employee to use her lactation breaks to breastfeed rather than pump.⁠26

Importantly, however, employers do not have a legal obligation to permit parents to bring their children to work. Nor do California employers have an obligation to provide daycare facilities for working parents. So the right to directly breastfeed a child at work is limited in application.

It should also be noted that California courts have not directly addressed the overlap between the right to breastfeed in public and the right to take lactation breaks. So, although the law seems to indicate that direct breastfeeding is a right for mothers who have their children at work, it isn’t entirely clear.

The Right to Breastfeeding Accommodations

As explained above, employers must provide nursing employees with the use of a private space, other than a bathroom, to express breast milk.⁠27 But California law also requires many employers to take additional steps to accommodate breastfeeding.

Employers in California must provide reasonable accommodations for an employee with a condition related to pregnancy or childbirth.⁠28 A reasonable accommodation is an adjustment to the employee’s work environment that enables her to perform the essential functions of the job.⁠29

For these purposes, lactation is a condition related to pregnancy or childbirth.⁠30 As a result, employers must accommodate an employee’s lactation-related needs.

A reasonable accommodation for a lactating employee will often include transferring her to a less strenuous or hazardous position.⁠31

To exercise this right, the employee must request the accommodation with the advice of her health care provider.⁠32 It is usually a good idea to put the request in writing and to save a copy.

Employers may not retaliate against an employee for requesting an accommodation for a pregnancy-related condition.⁠33 This is true even if the requested accommodation is ultimately denied. In other words, an employee cannot be punished, fired, or treated unfairly for seeking an accommodation.

Breastfeeding Discrimination and Harassment at Work

In California, it is unlawful for an employer with five or more employees to discriminate against an employee because of sex.⁠34

For these purposes, sex is defined to include breastfeeding or medical conditions related to breastfeeding.⁠35 As a result, employers of five or more employees may not discriminate against an employee for reasons related to breastfeeding.⁠36

Employers are likewise prohibited from harassing an employee for reasons related to breastfeeding.⁠37 The protections against workplace harassment are broader than those against discrimination: they apply regardless of the employer’s size,⁠38 and they cover women who aren’t technically employees.⁠39

The result of these laws is that a woman may not be treated unfairly because she wishes to breastfeed, take lactation breaks, or pump, whether at home or at work.⁠40

Using Leave Time for Breastfeeding

Many working mothers have a right to certain periods of unpaid leave time as a matter of law. In the context of pregnancy and breastfeeding, the two main types of leave are:

• Up to 12 weeks of leave to bond with the child,⁠41 and
• Up to four months of pregnancy disability leave.⁠42

An employee’s right to these types of leave will depend on a variety of factors, including how long they have worked for their employer, how many employees the employer has, and how many hours the employee has worked in the past year.⁠43

If an employee has a right to both types of leave, they can be applied cumulatively.⁠44 This means that an employee might be entitled to nearly seven months of total leave during or after a pregnancy.⁠45

Although these leaves are unpaid by the employer, an employee may qualify for partial wage replacement through the state Employment Development Department (EDD). State Disability Insurance can replace a portion of wages while an employee is disabled by pregnancy or childbirth, and Paid Family Leave can do the same for up to eight weeks of bonding leave.⁠46 Both currently pay roughly 70 to 90 percent of wages, depending on income, up to a maximum that adjusts each year. These programs provide income only; the job protection comes from the leave laws described above.

Importantly, the two types of leave serve very different purposes. If an employee is entitled to leave to bond with a child, they have a right to take that leave regardless of whether they are breastfeeding.⁠47

In contrast, pregnancy disability leave is available only to women who have been disabled by pregnancy or childbirth in some way.⁠48 In general, lactation is not a disabling condition for these purposes.⁠49

So an employee cannot usually use pregnancy disability leave to breastfeed. If, however, the employee has medical complications related to lactation, they may have a right to use pregnancy disability leave for purposes related to breastfeeding.⁠50

It is also possible that, if an employee is disabled by a condition related to breastfeeding or lactation, their employer will be required to provide time off in addition to the four months of pregnancy disability leave to accommodate the disability.⁠51

These rights are explained further in our article: Maternity Leave Law in California.

Consequences of Legal Violations

If an employer denies a nursing employee reasonable break time or adequate space to express milk, the denial is treated as a failure to provide a rest period. That entitles the employee to one additional hour of pay at her regular rate of compensation for each workday the break or space is denied.⁠52 The Labor Commissioner may also issue a citation and impose a civil penalty of $100 for each day the employee is denied break time or space.⁠53 In some cases, an employee may also recover civil penalties for the underlying violation, and keep a share, under the Private Attorneys General Act.⁠54

Similarly, if the employer discriminates against a breastfeeding employee, it can be held liable for substantial damages. Those damages might include:

• Compensatory Damages. Money to compensate the mother for any harm she suffered. Examples include lost wages, unpaid wages, and medical expenses.⁠55
• Punitive Damages. Money to punish the employer for its wrongful actions. These are especially likely if the employer retaliated against the employee for enforcing her breastfeeding-related rights.⁠56
• Legal Expenses. Money to pay the employee’s litigation-related costs, including attorney fees, court fees, and expert witness fees.⁠57

Clearly, a violation of California’s laws that protect nursing mothers can be costly. It is usually best for employers to play it safe and accommodate nursing mothers to the greatest extent possible.

How to Handle a Violation of Breastfeeding Rights

An employee whose breastfeeding rights have been violated has several options. Depending on the type of right that was violated, those options usually include:

• Resolve the dispute informally with the employer,
• File a complaint with the appropriate administrative agency, or
• File a civil lawsuit.

Which agency to turn to depends on the type of violation. A denied lactation break or an inadequate space to pump is a wage-and-hour matter for the California Labor Commissioner, so an employee can file a wage claim with that office.⁠58 Discrimination or harassment because of breastfeeding is instead a matter for the California Civil Rights Department (formerly the Department of Fair Employment and Housing), where an employee generally must file a complaint and obtain a right-to-sue notice before filing a lawsuit.⁠59

The best course will depend on a number of factors specific to the employee’s situation, including the type of right that was violated and the extent of the employee’s suffering.

Importantly, employers are generally prohibited from retaliating against employees who exercise or seek to enforce their rights.⁠60 As such, employees cannot be punished, fired, or treated unfairly for reporting violations of their breastfeeding rights.

It is often a good idea to have an employment attorney assist with pursuing these options. An attorney can evaluate the type of claim, recommend the best course of action, and negotiate the matter on the employee’s behalf.

The deadlines to act differ by claim, and they can be unforgiving. For a discrimination or harassment claim, an employee generally has three years to file a complaint with the Civil Rights Department and, after receiving a right-to-sue notice, one year to file a lawsuit.⁠61 A claim for a denied lactation break or space, which is treated as unpaid wages, generally must be brought within three years.⁠62 Because the applicable deadline depends on the claim, it is usually a good idea to act quickly.