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SB-937 Lactation accommodation.(2017-2018)

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Date Published: 08/06/2018 02:00 PM
SB937:v96#DOCUMENT

Amended  IN  Assembly  August 06, 2018
Amended  IN  Senate  May 25, 2018
Amended  IN  Senate  May 01, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 937


Introduced by Senators Wiener and Leyva
(Principal coauthors: Assembly Members Cristina Garcia and Gonzalez Fletcher)
(Coauthor: Assembly Member Chiu)

January 25, 2018


An act to add Section 18941.12 to the Health and Safety Code, and to amend Sections 1030, 1031, and 1033 of, and to add Sections 1034 and 1035 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


SB 937, as amended, Wiener. Lactation accommodation.
Existing law requires employers to provide a reasonable amount of break time to employees desiring to express milk for the employee’s infant child. Existing law also requires an employer to 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 employees’ work area, for the employee to express milk in private. Existing law exempts an employer from the break time requirement if the employer’s operations would be seriously disrupted by providing that time to employees desiring to express milk. Existing law subjects employers who violate these provisions to a civil penalty of $100 per violation and authorizes the Labor Commissioner to issue citations for those violations.
Existing law prohibits an employer, who is required by law to give an employee a rest period during a workday, from requiring the employee to work during the rest period. Existing law requires an employer to pay the employee one additional hour of pay, at the employees’s employee’s regular rate of compensation, for each rest period not provided.
This bill would require an employer to provide a lactation room or location that includes prescribed features and would require an employer, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s work space. workspace. The bill would require an employer to develop and implement a policy regarding lactation accommodation and make it available to employees, as specified. The bill would also require an employer to maintain records of requests for lactation accommodation for 3 years and to give the Labor Commission access to those records. The bill would provide that specified employers could seek an exemption from any of the requirements of these provisions if the employer could show that the requirement posed an undue hardship based on specified criteria.
The bill would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law. The bill would prohibit an employer from discharging, or in any other manner discriminating or retaliating against, an employee for exercising or attempting to exercise rights under these provisions, would establish specific additional remedies, and would authorize an employee to bring a civil action to obtain applicable remedies.
The bill would require the Division of Labor Standards Enforcement to create a model lactation accommodation policy and a model lactation accommodation request form, and make those models available for download from its Internet Web site by employees and employers. The bill would require the division to establish lactation accommodation best practices to provide nonmandatory guidance to employers.
The California Building Standards Law provides for the adoption of building standards by state agencies by requiring all state agencies that adopt or propose adoption of any building standard to submit the building standard to the California Building Standards Commission for approval and adoption. The commission is required to adopt specific building standards, including standards for graywater systems and electric vehicle charging infrastructure. Existing law requires the commission to publish, or cause to be published, editions of the California Building Standards Code in its entirety once every 3 years.
This bill would require the commission to adopt prescribed mandatory building standards for the installation of lactation space for employees in specified buildings when there is a tenant improvement project to the building and certain criteria are met.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 18941.12 is added to the Health and Safety Code, to read:

18941.12.
 The commission, commencing with the next triennial edition of the California Building Standards Code (Title 24 of the California Code of Regulations) adopted after January 1, 2019, shall adopt, approve, codify, and publish mandatory building standards for the installation of lactation space for employees as follows:
(a) Lactation space shall be required in a building classified as Group A, B, E, F, I, M, or R-1, as defined by Chapter 3 of the California Building Code, when there is a tenant improvement project to the building that meets all of the following:
(1) The tenant improvement project is for the interior of the building.
(2) The gross square footage of the interior space of the building designated for employee-only use, and included in the tenant improvement project, is at least 15,000 square feet.
(3) The estimated cost of the project, as stated in the building application, is over one million dollars ($1,000,000).
(b) A building required to include lactation spaces pursuant to subdivision (a) shall include the following number of lactation spaces:
Employee Occupancy Load of BuildingNumber of Lactation Spaces
50-1501
151-3002
301-5003
501-1,0004
1,001-2,0008
2,001-4,00011
For each additional 900 employees in excess of 4,0001
If the building contains existing lactation spaces that comply with this section prior to the tenant improvement project, those rooms may fulfill the requirements of this subdivision.
(c) Except as otherwise provided in this subdivision, lactation spaces shall be at least 50 square feet, have at least one electrical outlet, with an additional outlet for a refrigerator, if applicable, have access to a sink with hot and cold running water, have a door that can be locked from the inside, and shall be located no more than 500 feet from the farthest employee workspace or within two adjacent floors. A project shall be exempt from including a sink if the plans do not otherwise include plumbing.
(d) The room shall meet all applicable local, state, and federal accessibility requirements, including requirements under Chapter 11B of the California Building Code and the federal Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. Sec. 12102).

SEC. 2.

 Section 1030 of the Labor Code is amended to read:

1030.
 Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time such employee has need to express the milk. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.

SEC. 3.

 Section 1031 of the Labor Code is amended to read:

1031.
 (a) The employer shall provide the employee with the use of a room or other location 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.
(b) A lactation room or location shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is lactating.
(c) A lactation room or location shall comply with all of the following requirements:
(1) Be safe, clean, and free of toxic or hazardous materials.
(2) Contain a surface to place a breast pump and personal items.
(3) Contain a place to sit.
(4) Have access to electricity.
(d) The employer shall provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace.
(e) Where a multipurpose room is used for lactation among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is in use for lactation purposes.
(f) An employer in a multitenant building may comply with this section by providing a space shared among multiple employers within the building if the employer cannot provide a lactation location within its the employer’s own workspace.
(g) An employer may comply with the requirements of this section by designating a lactation location that is temporary, due to operational, financial, or space limitations. These temporary spaces should be identified by signage, free from intrusion while an employee is expressing milk, and should remain lactation spaces for the time they are used for lactation purposes.
(h) An employer with fewer than 50 employees may establish an exemption from any requirement of this section if the employer can show that the requirement would impose an undue hardship by causing the employer significant expense or operational difficulty when considered in relation to the size, financial resources, or structure of the employer’s business.

SEC. 4.

 Section 1033 of the Labor Code is amended to read:

1033.
 (a) The denial of reasonable break time or adequate space to express milk in accordance with this chapter shall be deemed a failure to provide a rest period in accordance with state law for purposes of Section 226.7. An aggrieved employee may file a complaint under this subdivision with the Labor Commissioner pursuant to Section 98.
(b) An employee shall not discharge, or in any other manner discriminate or retaliate against, an employee for exercising or attempting to exercise any right protected under this chapter. This subdivision is not intended to limit or expand an employee’s rights pursuant to Section 98.6. An aggrieved employee may file a complaint under this subdivision with the Labor Commissioner pursuant to Section 98.7.
(c) An employee may report a violation of this chapter to the Labor Commissioner’s field enforcement unit. If, upon inspection or investigation, the Labor Commissioner determines that a violation of this chapter has occurred, the Labor Commissioner may issue a citation and may impose a civil penalty in the amount of one hundred dollars ($100) for each day that an employee is denied reasonable break time or adequate space to express milk in violation of this chapter. The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for violations of this chapter shall be the same as those set forth in Section 1197.1.
(d) As an alternative to filing a complaint with the Labor Commissioner, an employee may bring a civil action in a court of competent jurisdiction for any of the remedies provided by this section, including, but not limited to, reinstatement, actual damages, and appropriate equitable relief. If the employee prevails, the court may award reasonable attorney’s fees.
(e) Notwithstanding any other provision of this code, violations of this chapter shall not be misdemeanors under this code.

SEC. 5.

 Section 1034 is added to the Labor Code, to read:

1034.
 (a) An employer shall develop and implement a policy regarding lactation accommodation that includes the following:
(1) A statement about an employee’s right to request lactation accommodation.
(2) The process by which the employee makes the request described in paragraph (1).
(3) An employer’s obligation to respond to the request described in paragraph (1) as outlined in subdivision (d).
(4) A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of a right under this chapter.
(b) The employer shall include the policy described in subdivision (a) in an employee handbook or set of policies that the employer makes available to employees.
(c) The employer shall distribute the policy described in subdivision (a) to new employees upon hiring and when an employee makes an inquiry about or requests parental leave.
(d) If an employer cannot provide break time or a location that complies with the policy described in subdivision (a), the employer shall provide a written response to the employee.
(e) An employer shall maintain a record of requests for three years from the date of request and shall allow the Labor Commissioner to access these records pursuant to Section 1174. An employer shall make these records available to an employee in the same manner as described in subdivisions (b) and (c) of Section 226. If an employer does not maintain adequate records pursuant to this section, or does not allow the Labor Commissioner reasonable access to such records, it shall be presumed that the employer has violated this chapter, absent clear and convincing evidence otherwise.

SEC. 6.

 Section 1035 is added to the Labor Code, to read:

1035.
 (a) (1) The Division of Labor Standards Enforcement shall create both of the following:
(A) A model lactation accommodation policy.
(B) A model lactation accommodation request form.
(2) The Division of Labor Standards Enforcement shall make the model policy and request form available for download from its Internet Web site by employees and employers.
(b) The Division of Labor Standards Enforcement shall establish lactation accommodation best practices that provide guidance to employers and a list of optional but recommended amenities, including amenities that may include the following:
(1) A permanent lactation location that is suitable for the preparation and storage of food.
(2) A door that can be locked from the inside.
(3) At least one electrical outlet.
(4) A washable, comfortable chair.
(5) Adequate lighting.
(6) The ability to partition the room.
(7) A refrigerator that the employer permits employees to use for storage of breast milk.
(8) A sink with hot and cold running water.
(9) A hospital-grade breast pump.
(10) A full-length mirror.
(11) A microwave.
(12) A locker to place personal belongings.
(13) A permanent sign outside designating the room for lactation accommodation.
(c) Noncompliance with the best practices outlined in this section shall not be deemed a violation of this chapter.