United States: California Enacts New Laws Expanding Lactation Accommodation Requirements, Other Paid Family Leave Benefits

Governor Jerry Brown recently signed several bills expanding lactation accommodation requirements for employers and certain California postsecondary educational institutions as well as pertaining to the scope of disability compensation benefits under the paid family leave program. These bills are Assembly Bill 1976, Assembly Bill 2785, Assembly Bill 2587, and Senate Bill 1123.

Assembly Bill 1976 (AB 1976)

AB 1976, approved September 30, 2018, requires every employer to make reasonable efforts to provide a room or location, other than a bathroom, (the bill deleted "toilet stall" and replaced it with "bathroom") in close proximity to the employee's work area, for lactation purposes. Employers can comply with this requirement by making available a temporary lactation location that meets the following conditions: (1) a permanent lactation location cannot be provided because of operational, financial, or space limitations; (2) the temporary lactation location is private and free from intrusion while an employee expresses milk; (3) the temporary lactation location is used only for lactation purposes while an employee expresses milk; and (4) the temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.

This new law also provides a narrow exemption, which applies only if an employer can demonstrate that having to provide the employee with the use of a room or other location, other than a bathroom, would impose an undue hardship when considered in relation to the size, nature, or structure of the employer's business. When the exemption applies, however, the employer must still make reasonable efforts to provide 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.

Assembly Bill 1976 (AB 2785)

AB 2785, also approved September 30, 2018, requires the California Community Colleges and the California State University to provide reasonable accommodations to a lactating student on their respective campuses to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. A satellite campus of these systems as well as the University of California are encouraged, though not required, to provide such reasonable accommodations on their respective campuses as well. 

Reasonable accommodations, which must be available whenever a student is required to be present on campus, include, but are not limited to: (1) permission to bring a breast pump and any other lactation equipment onto a college or university campus; (2) access to a power source for a breast pump or any other lactation equipment; or (3) access to a private and secure room, other than a restroom, with a table or shelf to place lactation equipment as well as a comfortable place to sit to express breast milk or breast-feed an infant child. Lactating students must also be provided a reasonable amount of time to accommodate their need to express breast milk or breast-feed an infant child and prohibits students from incurring an academic penalty as a result of their use of these reasonable accommodations. 

Notably, an existing room designated for a lactating student to express breast milk or breast-feed an infant child does not need to have a sink. However, if the campus room currently designated for these purposes does not have a sink, then upon the construction of a new campus, the replacement, expansion, or renovation of an existing building regularly used by students that costs $5,000,000 or more, or the construction of a new building designed for student use that costs $5,000,000 or more, the respective educational institution, in addition to the above accommodations, must provide a sink in a room in the newly constructed campus or building, or in a room in the replaced, expanded or renovated building. 

These accommodations must be implemented by the California Community Colleges and the California State University no later than January 1, 2020. The University of California is also urged to implement these requirements by this date as well.

Assembly Bill 1976 (AB 2587)

Next, AB 2587, approved on July 9, 2018, removed reference to an outdated waiting period rule for Paid Family Leave ("PFL") benefits. Prior to January 1, 2018, there was a 7-day waiting period before employees could begin receiving PFL benefits. In addition, employers could require employees to take up to two weeks of earned but unused vacation before employees could receive these benefits. In such situations, employees could apply earned but unused vacation time to this 7-day waiting period.

On January 1, 2018, a new law went into effect that removed the 7-day waiting period, yet there was still a reference in the law to applying unused vacation time to the waiting period. As a result, AB 2587 simply removed that outdated reference. No other substantive changes were implemented and employers can still require the use of up to two weeks of vacation time when an employee applies for PFL benefits.

Senate Bill 1976 (SB 1123)

Finally, SB 1123, approved on September 27, 2018, expands the scope of the Family Temporary Disability Insurance Program to assist active duty military service members and their families. As of January 1, 2021, employees who take time off to participate in a "qualifying exigency" related to the covered active duty, or call to covered active duty of the employee's spouse, domestic partner, child, or parent in the Armed Forces of the United States will be eligible for wage replacement benefits under PFL. Currently, only workers who take time off to care for a seriously ill family member or to bond with a minor child within one year of birth or placement are eligible for such benefits.

Such qualifying exigencies can include addressing issues that arise from a call or order, attending an official ceremony, program, or event sponsored by the military, attending a family support or assistance program sponsored or promoted by the military, arranging for alternative childcare for a child or enrolling or transferring the child to a new school or day care facility when the active duty or call to active duty requires a change in the existing childcare relationship and/or the enrollment or transfer, making financial or legal arrangements to address absences resulting from the active duty or call to active duty, or attending counseling provided by someone other than a health care provider, for oneself or for a family member when the need for counseling arises from the active duty or call to active duty.

Notably, SB 1123 only applies to "covered active duty," which are those members of the Armed Forces who are deployed to a foreign country as well as those members of the Army reserves who are deployed to a foreign country under a federal call or order to active duty.

Conclusion & Recommendations

In light of these recent changes in California legislation, we recommend that California employers and the educational institutions referenced herein closely review their current policies and practices pertaining to the provision of lactation rooms and lactation accommodations to ensure they are in compliance with the new laws. We also recommend that employers review their PFL policies and programs and begin preparing to update them as needed to make sure that all qualified employees are eligible to receive PFL benefits. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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