Accommodation for mothers to express breast milk while at work is required by federal law as well as California law. The federal Patient Protection and Affordable Care Act, enacted in 2010, requires a covered employer to provide unpaid break times to an employee to express milk for her infant child under one year of age whenever the need occurs. In addition, a location other than a bathroom must be made available and must not be in view of or subject to intrusion from others.
The federal law applies to all employers, but it provides an exemption to those with less than 50 employees if it can be shown that compliance would pose an undue hardship. Employees who are not exempt from Fair Labor Standards Act overtime requirements are eligible for the breaks.
California Industrial Welfare Commission Wage Orders essentially impose the same requirements as does the federal law. It requires the provision of a reasonable amount of time to express milk, and, like the federal law, requires that the break be paid if it coincides with a paid break afforded to other employees. Under both laws, if a break is needed other than at normal break time, it is not paid. The California law does not absolutely require the provision of a room other than a toilet stall for use. Instead it says that the employer shall make reasonable efforts to provide such a location. It also allows for use of the employee’s normal work location.
The federal law applies to all employers covered under the FLSA, including state and local governments. Therefore, the federal provisions for breast expression would prevail where the California Law is less beneficial. Similarly, where the California law provides a greater benefit, that law prevails. The federal law requires the provision of a location other than a bathroom, while the California law says an employer must make a reasonable effort to do so. Therefore, employers must follow the federal law on that issue. The federal law also only requires the breast expression rights until the employee’s child is one year old. The California law does not place an age requirement, so the more generous state law would grant rights for a longer period of time. The California law would also cover employers with less than 50 employees, while they may be exempt under federal law.
Employees who are not being afforded their rights under the state and federal laws may file complaints with the California Department of Industrial Relations or with the U.S. Department of Labor. Contact us today to speak to a professional labor law attorney in Sacramento.
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