Lactation Break Law in California: The Right to Pump at Work

A lactation break is a period of time during the work day for nursing mothers to express breast milk (i.e., a break to pump). All California employers are required to permit new mothers to take a reasonable amount of break time to express breast milk each time they need to pump,⁠1 and to provide a private lactation space that meets specific legal requirements.⁠2 These rights are subject to two narrow exceptions:

• Serious Disruptions. An employer is not required to provide lactation break time when doing so would seriously disrupt its operations.⁠3 The law does not define what a serious disruption means. It is most likely to exist where the employer incurs significant difficulty or expense because of their size, financial resources, or the specific circumstances of the business.⁠4
• Non-Infant Children. The right to take lactation breaks only exists for employees expressing breast milk for their own infant child.⁠5 California law contains no bright-line rule about how young a child must be to be considered an infant. By comparison, the federal right lasts for one year after the child's birth.⁠6 Because California's statute has no express time limit, courts are likely to find that the right to take lactation breaks lasts at least one year, and maybe even up to two or three years.⁠7

Importantly, the “serious disruptions” exception excuses only the break time. It does not excuse the duty to provide a compliant lactation space, although an employer with fewer than 50 employees can be exempted from a specific space requirement by demonstrating an undue hardship.⁠8

Courts in California tend to be very hesitant to deny women their lactation breaks. So employers should be cautious before claiming that either one of these exceptional circumstances applies.

The remainder of this article will explore the legal intricacies of lactation break rights in California.

Why the Right to Pump at Work Matters

Studies suggest that there are many benefits to breastfeeding. For mothers, breastfeeding provides a valuable opportunity to bond with their newborn. For children, there are numerous health and developmental benefits, including:

• Increased immunity to disease,
• Reduced risk of infections,
• Reduced risk of diabetes,
• Reduced risk of childhood obesity,
• Better mental health through adolescence,
• Reduced allergies, and
• Possibly increased intelligence.⁠9

Given these health benefits, it wouldn’t be fair for employers to make this important parental decision for their workers. Accordingly, both federal and state laws protect a mother’s right to express breast milk at work under certain conditions.

When, Where, and How Lactation Breaks Are Taken

The length of the lactation break must be a reasonable amount of time to express breast milk.⁠10 This somewhat vague standard usually means that there are no strict time limits.

The U.S. Department of Labor has suggested that the act of expressing breast milk alone typically takes about 15 to 20 minutes, but a reasonable break time will usually be longer because the employee will likely require preparation before beginning.⁠11

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.⁠12

Scheduling Lactation Breaks

If the employee is entitled to take rest or meal breaks, the employee should try to take the lactation break at the same time as the rest or meal breaks.⁠13 But if that isn't possible, or if the employee requires additional break time to express milk, the employer is still required to allow the lactation breaks at other times.⁠14

Lactation Break Locations

Employers are required to provide employees with the use of a room or other location to express breast milk in private.⁠15 The lactation space may not be a bathroom, and it must be in close proximity to the employee's work area, shielded from view, and free from intrusion while the employee is expressing milk.⁠16

The lactation space must also meet all of the following requirements:⁠17

• Be safe, clean, and free of hazardous materials;
• Contain a surface to place a breast pump and personal items;
• Contain a place to sit; and
• Have access to electricity, or to alternative devices like extension cords or charging stations, needed to operate an electric or battery-powered breast pump.

In addition, the employer must provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee's workspace. If a refrigerator cannot be provided, the employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.⁠18

If the employee's normal work area is private and otherwise compliant, the employer is allowed to designate that area as the place for the employee to express their breast milk.⁠19 A multipurpose room can also serve as the lactation space, but its use for lactation takes precedence over its other uses for as long as it is being used for lactation.⁠20 And an employer with operational, financial, or space limitations may designate a temporary lactation space, as long as it is not a bathroom, is close to the employee's work area, is private, and otherwise complies with the law.⁠21

Special rules apply to a few kinds of worksites. An employer in a multitenant building or multiemployer worksite that cannot provide a lactation location within its own workspace may comply by providing a space shared among the employers there.⁠22 And an agricultural employer complies by providing a private, enclosed, and shaded space, such as an air-conditioned cab of a truck or tractor.⁠23

Employees who work remotely have the same rights. Under federal guidance, an employee who works from home must be free to pump without being watched through any employer-provided or employer-required video system, such as a computer camera, security camera, or web conferencing platform.⁠24

Finally, an employer with fewer than 50 employees can be exempted from a specific space requirement if it demonstrates that the requirement would impose an undue hardship.⁠25 Even then, the employer must make reasonable efforts to provide the employee with the use of a private space, other than a toilet stall, in close proximity to the employee's work area.⁠26

Some California cities also impose additional lactation accommodation requirements. San Francisco, for example, has its own Lactation in the Workplace Ordinance, with policy, response, recordkeeping, and lactation-space rules that go beyond state law, enforced by the city's Office of Labor Standards Enforcement.⁠27

How to Request Lactation Breaks

If new mothers desire to express breast milk at work, they should notify their employer of the need to do so. It is usually a good idea to put the request in writing, using respectful but concise language.

Employers are also required to maintain a written lactation accommodation policy. The policy must describe the employee's right to request a lactation accommodation, the process for making the request, the employer's obligation to respond, and the employee's right to file a complaint with the Labor Commissioner.⁠28 The policy must be included in the employee handbook or the employer's set of policies, and it must be distributed to new hires and to any employee who asks about parental leave.⁠29

If the employer cannot provide compliant break time or a compliant location, it must respond to the employee in writing.⁠30 Employees should keep a copy of that response, along with a copy of their own request.

Employers are legally prohibited from retaliating against employees who request a lactation break or otherwise exercise their lactation break rights.⁠31 This means that an employee cannot be punished, fired, or treated unfairly for exercising the right to a lactation break.

Pay During Lactation Breaks

If the employee takes their lactation breaks at times other than their normal rest or meal breaks, the employer is not required to pay the employee during the lactation break.⁠32

If the lactation break occurs at the same time that a paid break would otherwise occur for the employee, the break must be paid.⁠33

The employee must also be paid for the break if they are not completely relieved of their work duties while pumping.⁠34 In other words, an employee who keeps working while expressing milk is on paid time.

Here is how the two laws compare on the key points:

Direct Breastfeeding in Public and at Work

In California, mothers have a right to breastfeed their child in any location, public or private.⁠35 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.⁠36

This law strongly suggests that, if an employer allows children in the workplace or provides for on-site daycare, the employer must permit their employee to use their lactation breaks for the purpose of breastfeeding, rather than pumping.⁠37

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 children 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 Duty to Accommodate Breastfeeding Mothers

As mentioned above, employers are required to provide employees with a private lactation space that meets specific legal requirements, along with reasonable break time to use it.⁠38 But California law also requires many employers to take additional steps to accommodate breastfeeding.

Employers in California with five or more employees are legally required to provide reasonable accommodations for employees with a condition related to pregnancy or childbirth.⁠39 A reasonable accommodation is an adjustment to the employee’s work environment that can enable the employee to perform the essential functions of the job.⁠40

For these purposes, lactation is a condition related to pregnancy or childbirth.⁠41 As such, employers are required to accommodate the employee's lactation-related needs. Notably, at least one court has held that this accommodation right is not limited to employees who are expressing milk for their own infant child.⁠42

Reasonable accommodations for lactating mothers will often include transferring the employee to a less strenuous or hazardous position.⁠43 They might also include allowing the mother to work from home.

Federal law now imposes a similar duty. Under the Pregnant Workers Fairness Act, which took effect in 2023, employers with 15 or more employees must provide reasonable accommodations for an employee's known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would impose an undue hardship.⁠44 Lactation is among the conditions that can require accommodation under this law.⁠45

To exercise this right under California law, the employee must request the accommodation with the advice of her health care provider.⁠46 It is usually a good idea to put the requests in writing, and to save a copy of the request.

Employers are prohibited from retaliating against employees who request an accommodation for a condition related to pregnancy or breastfeeding.⁠47 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.

Discrimination Related to Lactation Breaks

In California, it is unlawful for an employer with five or more employees to discriminate against an employee on the basis of their sex.⁠48

For these purposes, sex is defined to include breastfeeding or medical conditions related to breastfeeding.⁠49 As such, employers of five or more employees are prohibited from discriminating against employees for reasons related to breastfeeding.⁠50

Likewise, employers are prohibited from harassing women for reasons related to breastfeeding.⁠51 The protections against workplace harassment are broader than those against discrimination: they apply regardless of the employer's size,⁠52 and they cover women who aren't technically employees.⁠53

The result of these laws is that women may not be treated unfairly or improperly because they desire to breastfeed, take lactation breaks, or pump (whether at home or work).⁠54 Related guideWorkplace Breastfeeding Laws in CaliforniaA broader look at the employment rights of breastfeeding mothers in California, including discrimination and accommodation claims.

Using Leave Time from Work for Breastfeeding

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

• Up to 12 weeks of leave to bond with the child,⁠55 and
• Up to four months of pregnancy disability leave.⁠56

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 for the employer.⁠57 Both types of leave now apply to employers with five or more employees.⁠58

But, if an employee has a right to both types of leave, they can be applied cumulatively.⁠59 This means that an employee might be entitled to nearly seven months of total leave time during or after their pregnancy.⁠60

Importantly, the two types of leave serve very different purposes. If an employee is entitled to receive leave to bond with their child, they have a right to take that leave regardless of whether they are breastfeeding.⁠61

In contrast, pregnancy disability leave is only available to women who have been disabled by the pregnancy or childbirth in some way.⁠62 In general, lactation is not a disabling condition for these purposes.⁠63

So an employee cannot usually use pregnancy disability leave to breastfeed. If, however, the worker has medical complications related to lactation, they may have a right to use pregnancy disability leave for purposes related to breastfeeding.⁠64

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 them with time off in addition to their four months of pregnancy disability leave to accommodate their disability.⁠65

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

Consequences of Violating Lactation Break Laws

If an employer denies an employee reasonable break time or an adequate space to express milk, the denial is treated as a failure to provide a rest period. The employee is therefore entitled to one additional hour of pay at their regular rate of compensation for each workday of the violation.⁠66 The employee can recover that pay by filing a wage claim with the Labor Commissioner or by filing a lawsuit.⁠67

Employees can also report violations to the Labor Commissioner's field enforcement unit. After an inspection or investigation, the Labor Commissioner can issue a citation imposing a civil penalty of $100 for each day that the employee was denied reasonable break time or adequate space to express milk.⁠68 In some cases, part of these penalties can be recovered by the employee through a Private Attorneys General Act lawsuit.⁠69

Federal remedies are also available. Since April 28, 2023, employees can recover the full range of remedies under the Fair Labor Standards Act for violations of the federal break time and space requirements, either by filing a complaint with the U.S. Department of Labor's Wage and Hour Division or by filing a lawsuit.⁠70 One caution applies: before suing over an employer's failure to provide a compliant space, the employee generally must notify the employer and give it 10 days to come into compliance. That notice is not required if the employee was fired for requesting break time or a space, or if the employer has made clear that it has no intention of providing one.⁠71

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

• Compensatory Damages. Money to compensate the mother for any harm she suffered. Examples of this type of relief include money for lost wages, unpaid wages, or medical expenses.⁠72
• Punitive Damages. Money to punish the employer for their wrongful actions. These are especially likely if the employer retaliated against the employee for enforcing their breastfeeding-related rights.⁠73
• Legal Expenses. Money to pay the employee's litigation-related costs, including attorney fees, court fees, and expert witness fees.⁠74 An employer that wins the lawsuit, by contrast, can recover its fees and costs only if the court finds the action was frivolous, unreasonable, or groundless.⁠75

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 Lactation Break Rights

Victimized employees have 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 an administrative agency, or
• File a civil lawsuit.

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. In general, violations of the lactation break and space requirements are handled by the Labor Commissioner, while discrimination, harassment, and accommodation claims begin with an intake filed with California's Civil Rights Department (CRD).⁠76

Importantly, employers are generally prohibited from retaliating against employees who exercise or seek to enforce their rights.⁠77 As such, employees cannot be punished, fired, or treated unfairly for reporting violations of their breastfeeding rights. And if an employer takes an adverse action within 90 days of the employee's protected activity, the law presumes the action was retaliatory, and the employer must rebut that presumption.⁠78

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

Importantly, however, the deadline to file claims is often short. A wage claim for the missed-break premium generally must be filed within three years.⁠79 A discrimination or harassment claim must be filed with the Civil Rights Department within three years of the violation, and any lawsuit must be filed within one year of receiving a right-to-sue notice.⁠80 So it is usually a good idea for employees to act fast if they wish to enforce their rights.