The City of San Francisco enacted an ordinance, applicable to every employer in the city, guaranteeing a woman’s right to breast feed and pump breast milk during the work day.  The ordinance, which becomes effective on January 1, 2018, requires employers to create and implement a Lactation Accommodation Policy and to inform workers of their rights to request and take breaks to pump.  After Jan. 1, 2019, violators can face penalties of up to $500.

After analyzing breast feeding’s health benefits, the San Francisco Board of Supervisors found that “there are several barriers to breastfeeding associated with employment. Women may not be aware of their rights to lactation accommodation in the workplace.  Many women fear discussing breastfeeding with employers, which for San Francisco WIC participants, is one factor associated with early supplementation of formula for breastmilk.  In San Francisco, 50% of women who have given birth report back to work within 12 months postpartum, with only 13% reporting leave from their job and only 13% working less than 40 hours per week.”  To assist these and all women who want to breast feed, the Board of Supervisors drafted an ordinance designed “to provide a supportive work environment to enable employees in [San Francisco] who are nursing mothers to breastfeed or express milk during working hours.  Providing a supportive work environment to these employees will greatly benefit the health and welfare of employees and their families, while reducing burdens on the health care system associated with medical problems in children and mothers caused in part by an absence of or reduction in breastfeeding.”

Under existing federal and state law, employers are required to accommodate nursing mothers.  This ordinance, however, goes further and requires employers to not only provide a place for nursing but to also have specific policies and practices.  Employers covered by the ordinance – which is anyone with even a single full or part-time employee within the geographical boundaries of San Francisco – are required to (a) provide a Lactation Location (defined as the space, room, or location an employer must provide for an employee for the purposes of expressing breast milk), and (b) establish a Lactation Accommodation policy.

Lactation Location

Starting January 1, 2018, an employer is required to provide breaks and a location for an employee who desires to express milk in the workplace for the employee’s child.  Breaks may run concurrently with the employee’s normal paid breaks, and any additional break time may be unpaid or paid, at the discretion of the employer.  An employer must establish a location for lactation that is:

• Not a bathroom;
• Free of intrusion;
• Safe, clean, and free of toxic or hazardous materials;
• Contains a surface, such as a table or counter, a chair; and
• Has access to electricity.

The employer must also provide a refrigerator where the employee can store breast milk and access to a sink with running water.  An employer may meet the obligation to provide a Lactation Location by designating a room or space to provide the accommodation that is also used for other purposes, provided that the employee’s lactation breaks take precedence over other uses during the accommodation period.  An employer may seek a waiver from these requirements if it can show the creation of such a space will be an unreasonable burden.

Lactation Accommodation Policy

The ordinance requires employers establish written policies concerning its accommodations for lactation and nursing mothers.  The ordinance requires an employer’s Lactation Accommodation policy contain the following:

• A statement that employees have a right to request Lactation Accommodation;
• Identification of a process by which an employee may request Lactation Accommodation which shall:
  • specify how an employee may submit a request for Lactation Accommodation;
  • require the employer to respond to a request for Lactation Accommodation within five business days; and
  • require the employer and employee to engage in an interactive process to determine the appropriate Lactation Break period(s) and the Lactation Location for the Employee;
• State that if in response to a request for Lactation Accommodation, the employer does not provide Lactation Breaks or a Lactation Location, or provides a Lactation Location that does not comply with the ordinance, based on the exception available under the ordinance, the employer must provide the employee a written response that identifies the basis upon which the employer has denied the request. Copies of the responses required to be retained in accordance with the ordinance; and
• State that retaliation against an employee for exercising the rights conferred by the ordinance is prohibited.

The policy must be provided to all new hires and to any employee who asks about or requests pregnancy or parental leave.  The ordinance has various record-keeping obligations.  The San Francisco Office of Labor Standards Enforcement (OLSE) has posted a model Lactation Accommodation policy and request form on its website — http://sfgov.org/olse/lactation-workplace. 

Administration and Enforcement

The OLSE is responsible for administering and enforcing the ordinance.  Employers are required to give the OLSE access to their records concerning lactation requests.  If the employer fails to maintain records or does not allow the OLSE access to them, then a rebuttable presumption arises that the employer violated the ordinance and it can only be rebutted by clear and convincing evidence to the contrary.  Beginning January 1, 2018, the OLSE will only issue warnings and notices to employers to correct.  Beginning January 1, 2019, after issuing a notice to correct and providing the employer with a reasonable amount of time to resolve the violation, the OLSE may impose administrative penalties up to $500 per violation and $50 per day for each employee as to whom the violation occurred.  The ordinance does not provide for a private enforcement mechanism.  However, creative attorneys will likely find ways to allege violations.

We suggest that any employer with San Francisco employees review their policies and procedures to ensure that (a) it has a lactation location, and (b) has a policy that complies with the San Francisco ordinance.  Please contact us to review your current policies to ensure compliance with all applicable federal, state, and municipal laws and ordinances.

If you have questions about this article or any other employment-related matter, please call John Rubiner at 310/441-0500 or email him at jrubiner@gerardfoxlaw.com.  Mr. Rubiner chairs Gerard Fox Law’s Labor and Employment Group.