No Hardship For Lactation
For over a decade, California employers have been required to provide new mothers with a private place and a reasonable amount of extra break time whenever they need to express (pump) breast milk.
Before 2013, there was an exception that applied to smaller (under 50 employee) companies, which allowed these employers to refuse an accommodation if it “would seriously disrupt the operations.”
The law changed, however, in late December 2012 when new Pregnancy Disability Regulations from the Fair Employment and Housing Commission (FEHC) took effect and established new rules for accommodating lactation.
The new FEHC Pregnancy Regulations do not provide any exception for “undue hardship” (or any other reason) from the employer’s duty to provide a “reasonable accommodation” for lactation.
According to the new FEHC regulation 2 CCR section 7291.2(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.”
And section 7291.7(a) says, “It is unlawful for an employer to deny a request for reasonable accommodation made by an employee affected by pregnancy if: (1) The employee’s request is based on the advice of her health care provider that reasonable accommodation is medically advisable; and (2) The requested accommodation is reasonable.”
Subsection (2) continues, “(A) Whether an accommodation is reasonable is a factual determination to be made on a case-by-case basis, taking into consideration such factors, including but not limited to, the employee’s medical needs, the duration of the needed accommodation, the employer’s legally permissible past and current practices, and other such factors, under the totality of the circumstances. (B) The employee and employer shall engage in a good faith interactive process to identify and implement the employee’s request for reasonable accommodation….”
The FEHC provided a brief explanation for why there is no longer an undue hardship exception:
The Commission did not include ‘undue hardship’ in this definition because Government Code section 12945, subdivision (a)(3)(A), requiring an employer to reasonably accommodate for conditions related to pregnancy, childbirth or a related medical condition, makes no mention of undue hardship, and the legislative history adding this provision, A.B. 1670, indicates that that Legislature contemplated that the types of accommodations required by pregnancy, more rest breaks, usage of stools or chairs, would be de minimus and for short durations.
Accordingly, it appears that California employers must accommodate lactating employees who wish to pump breast milk when medically advisable regardless of any “undue hardship.” Plus, they have to engage in an “interactive process” (negotiation) to arrive at a satisfactory solution.