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,1 unless one of the following situations applies:
- Serious Disruptions. Lactation break rights do not apply is when taking one would seriously disrupt the operations of the employer.2 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.3
- Non-Infant Children. The right to take lactation breaks only exists for employees expressing breast milk for their own infant child.4 There is no bright-line rule about how young a child must be to be considered an infant for these purposes. 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.5
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.
- 1 Why the Right to Pump at Work Matters
- 2 When, Where, and How Lactation Breaks Are Taken
- 3 Direct Breastfeeding in Public and at Work
- 4 The Duty to Accommodate Breastfeeding Mothers
- 5 Discrimination Related to Lactation Breaks
- 6 Using Leave Time from Work for Breastfeeding
- 7 Consequences of Violating Lactation Break Laws
- 8 How to Handle a Violation of Lactation Break Rights
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.6
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.7 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.8
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 take 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.9
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.10 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.11
Lactation Break Locations
Employers are required to make reasonable efforts to provide employees with a private area to express breast milk. The area must be in close proximity to the employee’s work area, and may not be a toilet stall.12
A private area, for these purposes, is one that is shielded from view and free from intrusion from coworkers and the public.13 If the employee’s normal work area is private and suitable, the employer is allowed to designate that area as the place for the employee to express their breast milk in private.14
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 legally prohibited from retaliating against employees who request a lactation break.15 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.16
If the lactation break occurs at the same time that a paid break would otherwise occur for the employee, the break must be paid.
Direct Breastfeeding in Public and at Work
In California, mothers have a right to breastfeed their child in any location, public or private.17 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.18
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.19
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 make reasonable efforts to provide employees with a private area, other than a toilet stall, to express breast milk.20 But California law also requires many employers to take additional steps to accommodate breastfeeding.
Employers in California are legally required to provide reasonable accommodations for employees with a condition related to pregnancy or childbirth.21 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.22
For these purposes, lactation is a condition related to pregnancy or childbirth.23 As such, employers are required to accommodate the employee’s lactation-related needs.
Reasonable accommodations for lactating mothers will often include transferring the employee to a less strenuous or hazardous position.24 They might also include allowing the mother to work from home.
To exercise this right, the employee must request the accommodation with the advice of her health care provider.25 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 their pregnancy-related disability.26 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.27
For these purposes, sex is defined to include breastfeeding or medical conditions related to breastfeeding.28 As such, employers of five or more employees are prohibited from discriminating against employees for reasons related to breastfeeding.29
Likewise, employers are prohibited from harassing women for reasons related to breastfeeding.30 The protections against workplace harassment are broader than those against discrimination—they apply regardless of the employer’s size,31 and they cover women who aren’t technically employees.32
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).33
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,34 and
- Up to four months of pregnancy disability leave.35
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.36
But, if an employee has a right to both types of leave, they can be applied cumulatively.37 This means that an employee might be entitled to nearly seven months of total leave time during or after their pregnancy.38
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.39
In contrast, pregnancy disability leave is only available to women who have been disabled by the pregnancy or childbirth in some way.40 In general, lactation is not a disabling condition for these purposes.41
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.42
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.43
These rights are explained further in our article: Maternity Leave Law in California.
Consequences of Violating Lactation Break Laws
If an employer fails to provide their employees with a lactation break, they can be required to pay a civil penalty of $100.00 for each violation.44 In some cases, part of that penalty can be recovered by the employee.45
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.46
- 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.47
- Legal Expenses. Money to pay the employee’s litigation-related costs, including attorney fees, court fees, and expert witness fees.48
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.
Importantly, employers are generally prohibited from retaliating against employees who exercise or seek to enforce their rights.49 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. 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. So it is usually a good idea for employees to act fast if they wish to enforce their rights.
Labor Code, §§ 1030–1033; 29 U.S.C. § 207(r) [applying only to employers with 50 or more employees if such requirements would impose an undue hardship].Footnote 1
Labor Code, § 1032 [“An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.”].Footnote 2
See, e.g., Gov. Code § 12926, subd. (u) [“‘Undue hardship’ means an action requiring significant difficulty or expense . . . .”]; see also 29 U.S.C. 207(r)(3) [“An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”].Footnote 3
Labor Code, § 1030.Footnote 4
See, e.g., Bauman v. Beaujean (1966) 244 Cal.App.2d 384, 388 [suggesting a child younger than 3½ years old might be considered an “infant.”]; Wikipedia, Infant (2018) [“The term ‘infant’ is typically applied to young children between one month and one year of age; however, definitions may vary and may include children up to two years of age.”], available here.Footnote 5
Wikipedia, Breastfeeding.Footnote 6
Labor Code, § 1030 [“Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child”]; 29 U.S.C. § 207(r) [“An employer shall provide– (A) a reasonable break time for an employee to express breast milk for her nursing child . . . .”].Footnote 7
Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80075 (Dec. 21, 2010).Footnote 8
Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80075 (Dec. 21, 2010).Footnote 9
Labor Code, § 1030 [“The break time shall, if possible, run concurrently with any break time already provided to the employee.”].Footnote 10
Labor Code, § 1030.Footnote 11
Labor Code, § 1031 [“The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”].Footnote 12
29 U.S.C. 207(r)(1)(B) [An employer shall provide . . . a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”].Footnote 13
Labor Code, § 1031 [“The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.”].Footnote 14
Labor Code, § 98.6, subd. (a) [“A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because . . . of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.”].Footnote 15
Labor Code, § 1030 [“Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.”]; 29 U.S.C. 207(r)(2) [“An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.”].Footnote 16
Civil Code, § 43.3.Footnote 17
Civil Code, § 43.3 [“Notwithstanding any other provision of law, a mother may breastfeed her child in any location, public or private, except the private home or residence of another, where the mother and the child are otherwise authorized to be present.”].Footnote 18
Compare Labor Code, § 1030, with Civil Code, § 43.3.Footnote 19
Labor Code, § 1031 [“The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”].Footnote 20
Gov. Code, § 12945, subd. (a)(3) [prohibiting employers from “refus[ing] to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.”].Footnote 21
Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.Footnote 22
Cal. Code of Regs., tit. 2, § 11035, subd. (d) [“A ‘condition related to pregnancy, childbirth, or a related medical condition,’ as set forth in Government Code section 12945, means a physical or mental condition intrinsic to pregnancy or childbirth that includes, but is not limited to, lactation.”].Footnote 23
Cal. Code of Regs., tit. 2, § 11035, subd. (d).Footnote 24
Gov. Code, § 12945, subd. (a)(3)Footnote 25
Gov. Code, § 12940, subd. (m)(2).Footnote 26
Gov. Code, § 12940, subd. (a) [defining sex discrimination as a type of unlawful employment practice, unless based upon a bona fide occupational qualification].Footnote 27
Gov. Code, § 12926, subd. (r)(1)(C) [“‘Sex’ includes, but is not limited to, the following: . . . Breastfeeding or medical conditions related to breastfeeding.”].Footnote 28
Gov. Code, §§ 12926, subd. (r)(1)(C), 12940, subd. (a).Footnote 29
Gov. Code, § 12940, subd. (j)(1) [prohibiting sex harassment of any employee, applicant, unpaid intern, volunteer, or a person providing services pursuant to a contract].Footnote 30
Gov. Code, § 12940, subd. (j)(4)(A) [“For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.”].Footnote 31
Gov. Code, § 12940, subd. (j)(1) [applying to employees, applicants, interns, volunteers, and independent contractors].Footnote 32
See also Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80078 (Dec. 21, 2010) [“If an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII.”].Footnote 33
See Gov. Code, §§ 12945.2, 12945.6.Footnote 34
See Gov. Code, § 12945.Footnote 35
Gov. Code, §§ 12945, 12945.2.Footnote 36
Gov. Code, § 12945.2, subd. (s) [“An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.”].Footnote 37
Gov. Code, §§ 12945, 12945.2.Footnote 38
Gov. Code, § 12945.2Footnote 39
Gov. Code, § 12945, subd. (a)(1).Footnote 40
Cal. Code of Regs., tit. 2, § 11035, subd. (d) [“Generally lactation without medical complications is not a disabling related medical condition requiring pregnancy disability leave, although it may require transfer to a less strenuous or hazardous position or other reasonable accommodation.”].Footnote 41
Gov. Code, § 12945; Cal. Code of Regs., tit. 2, § 11035.Footnote 42
See Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1339–1341 [holding that an employer’s obligations to provide accommodations under the Fair Employment and Housing Act are still required when the employee has exhausted their leave time under the Pregnancy Disability Leave Law].Footnote 43
Labor Code, § 1033, subd. (a) [“An employer who violates any provision of this chapter shall be subject to a civil penalty in the amount of one hundred dollars ($100) for each violation.”].Footnote 44
Labor Code, §§ 2698–2699.5 [the Labor Code Private Attorneys General Act of 2004].Footnote 45
Gov. Code, § 12965, subd. (c) [“A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part.”].Footnote 46
Peatros v. Bank of America (2000) 22 Cal.4th 147, 166–167 [FEHA “allows the employee to obtain ‘all relief generally available,’ specifically ‘in noncontractual actions’ [citations], including ‘unlimited compensatory and punitive damages’ [citations].”]; see also Labor Code, §§ 98.6, 1102.5, 1197.5 [prohibiting retaliation]; Gov. Code, § 12940, subd. (m) [same].Footnote 47
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 48
Labor Code, §§ 98.6, 1102.5, 1197.5; Gov. Code, § 12940, subd. (m).Footnote 49