In California, employers must provide nursing mothers with a private place to pump that is not a bathroom and a reasonable amount of time to do so. (Courtesy photo)

In California, employers must provide nursing mothers with a private place to pump that is not a bathroom and a reasonable amount of time to do so. (Courtesy photo)

Nursing mothers must be accommodated

This week’s question comes to us from Melanie B., who writes:

Q: “I recently returned to work from a four-month maternity leave. I am still breastfeeding my daughter and need to pump at work. I only need to pump once while at work and do so during my lunch break. When I asked my employer for a clean place to pump, they told me I have to pump in the bathroom. So I’ve been pumping in my car during my lunch break every day, because pumping in the bathroom stall is not sanitary. Since I returned to work, I’ve been requesting to work overtime shifts and have been declined. Last week, I requested an overtime shift and was denied again. When I went to HR to ask why I was being denied, they told me they could not let me work overtime because of my ‘special needs.’ Everyone in my job category is allowed to place bids on overtime shifts and to work overtime. Before I went on my maternity leave, I regularly worked overtime shifts. My family relies on my income and on the overtime shifts I used to work in order to survive. We are really struggling to make ends meet now that my employer is not allowing me to take overtime shifts anymore. Are they allowed to do this? It just doesn’t seem fair to deny me overtime shifts just because I need to pump.”

A: Thank you for your question Melanie. Employers generally are required to accommodate an employee’s right to pump upon her return to work from maternity leave. Under California law, your employer must provide you with a private place to pump that is not a bathroom and a reasonable amount of time to do so. Your employer must also not retaliate against you for requesting a private space to pump or for pumping while at work. These rights are protected in both the California Labor Code and the California Fair Employment and Housing Act, as well as federal legislation not discussed in this article.

The California Labor Code provides that every employer “shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee” and 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. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.”

The word “shall” in these code sections means these accommodations are mandatory for employers to provide. An employer is only exempt from complying with these rules if it would “seriously disrupt the [employer’s] operations.” But this hardship is an extremely heavy burden to prove. Therefore, employers that aren’t otherwise exempt are breaking the law if they refuse to provide reasonable breaks and a private place for a woman to pump while at work.

Further, retaliation by an employer for requesting an accommodation to pump while at work is unlawful under the Labor Code and FEHA. In 2012, the Legislature amended the definition of “sex” under FEHA to include “pregnancy” and/or “breastfeeding” (or related medical conditions). Women may not be discriminated against because they breastfeed/pump, request accommodations to pump at work or suffer from medical conditions related to breastfeeding. California law treats adverse actions by an employer because of these reasons as sex discrimination.

If an employer discriminates, retaliates, or takes negative action against a woman because she pumps at work or has requested a reasonable accommodation in order to pump at work, that employer may have broken the law and can be liable for its actions. I recommend you give your employer a copy of this article and request that they provide you with a private place to pump and allow you to work available overtime shifts. Try and resolve the issue amicably, but if they won’t accommodate you and they continue to discriminate against you, contact a trial lawyer to protect your rights.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to
breastfeedingChris Dolanlabor codelawlegalSan Francisco

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