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SB-937 Lactation accommodation.(2017-2018)

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Date Published: 01/25/2018 09:00 PM
SB937:v99#DOCUMENT


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 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 introduced, 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.
This bill would require a lactation room or location to include prescribed features and would require an employer to provide access to a sink and refrigerator in close proximity to the employee’s work space. The bill would establish a procedure for an employer with fewer than 5 employees to apply to the Division of Labor Standards Enforcement for an undue hardship exemption from the lactation room or location requirement. 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 require an employer to respond to an employee’s request for lactation accommodation within 5 days and provide a written response to the employee if an employer cannot provide break time or a location that complies with the policy. 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 prohibit an employer from discharging or retaliating against an employee for exercising or attempting to exercise rights under these provisions, would establish specific additional remedies, would authorize an employee to bring a civil action to obtain applicable remedies, and would increase the civil penalty to $500 for violations.
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 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 nonresidential buildings newly constructed or remodeled for workplace occupancy, as specified.
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 in nonresidential buildings newly constructed or remodeled for workplace occupancy, as follows:
(a) Lactation space shall be required in a building that has at least 15,000 square feet of employee workspace if the project costs more than five hundred thousand dollars ($500,000).
(b) Additional lactation spaces shall be required based upon square footage and occupant loads in areas designated as employee workspace.
(c) Except as otherwise provided in this subdivision, lactation spaces shall be at least 50 square feet, have at least one electrical outlet, have access to a sink with hot and cold running water, 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) A new lactation room shall have a permanent sign outside the door indicating its use as a lactation room.
(e) The standards adopted pursuant to this section may include an exemption for a project if the existing employee workspace is compliant with those standards.

SEC. 2.

 Section 1031 of the Labor Code is amended to read:

1031.
 (a) 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, 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 proximity to the employee’s work area, shielded from view, and free from intrusion.
(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 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.
(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 own workspace.
(g) An employer with fewer than five employees who can demonstrate that compliance with this section would impose an undue hardship may apply to the Labor Commissioner for an undue hardship exemption. The Labor Commissioner shall determine whether to approve the application for the undue hardship exemption by evaluating the difficulty or expense of compliance for the employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

SEC. 3.

 Section 1033 of the Labor Code is amended to read:

1033.
 (a) An employer shall not discharge or in any manner discriminate or retaliate against an employee for exercising or attempting to exercise any right protected under this chapter.
(b) An employer who violates any provision of this chapter shall be subject to a civil penalty in the amount of one five hundred dollars ($100) ($500) for each violation.
(c) An employee aggrieved by a violation of this chapter shall be entitled to reinstatement and actual damages and to appropriate equitable relief.
(d) An employee who is discharged, threatened with discharge, demoted, suspended, denied break time or adequate space to express milk, or in any manner discriminated or retaliated against in terms and conditions of employment by his or her employer because the employee has exercised the employee’s rights as set forth in this chapter may file a complaint with the Labor Commissioner.

(b)

(e) If, upon inspection or investigation, the Labor Commissioner determines that a violation of this chapter has occurred, the Labor Commissioner may issue a citation. 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. Alternatively, an employee may bring a civil action for the remedies provided by this section in a court of competent jurisdiction. If the employee prevails, the court may award reasonable attorney’s fees.

(c)

(f) Notwithstanding any other provision of this code, violations of this chapter shall not be misdemeanors under this code.

SEC. 4.

 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 below in subdivisions (d) and (e).
(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) An employer shall respond to an employee’s request for lactation accommodation within five days.
(e) 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.
(f) 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. 5.

 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 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) A surface to place personal items.
(6) Adequate lighting.
(7) The ability to partition the room.
(8) A refrigerator that the employer permits employees to use for storage of breast milk.
(9) A sink with hot and cold running water.
(10) A hospital-grade breast pump.
(11) A full-length mirror.
(12) A microwave.
(13) A locker to place personal belongings.
(14) A permanent sign outside designating the room for lactation accommodation.
(c) Best practices shall state that temporary lactation spaces can be created due to operational, financial, or space limitations. These temporary spaces should be identified by signage, free from intrusion, and should remain lactation spaces for the duration of an employee’s need to express milk.
(d) Best practices shall also include a recommendation that an employer consider flexible break times to accommodate changes in an employee’s need to express milk, that the lactation space be within a five-minute walk from the employee’s work place, and that break time not be affected by the length of time it takes to get to the dedicated lactation room or space.