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Working women who are also nursing mothers will get some extra help from San Francisco starting Jan. 1, 2018, when an ordinance will require employers to provide a clean, comfortable place to pump breast milk.
The ordinance, signed into law on June 30 by Mayor Ed Lee, 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.
Existing state and federal laws already require employers to accommodate nursing mothers, but this ordinance goes further by spelling out best practices and lactation accommodation policies, said Michele Haydel Gehrke, an attorney with Polsinelli in San Francisco.
[SHRM members-only HR Q&A: Under California law, what must an employer do to accommodate lactating mothers in the workplace?]
California state law says employers must provide a "reasonable amount" of break time for mothers to express breast milk and must make "reasonable efforts" to provide a place to do so. Violators can be fined $100.
Workers who need longer breaks to pump need not be paid for extra break time. Hourly employees who don't have enough paid break time to complete their pumping may have to clock out when their paid breaks end and clock back in when they return to work, Gehrke said. But employers should do all they can to accommodate a worker.
Producing a sufficient amount of breast milk during a typical eight-hour workday usually requires three 30-minute pumping sessions, said Katie Howser, a San Francisco-based lactation consultant who works with thousands of mothers. Many women are surprised—and frustrated—to find that pumping at work takes longer than nursing or pumping at home. Pumps are rarely as efficient as nursing infants, and the stresses of returning to work and being apart from an infant can also affect production.
The San Francisco ordinance applies to all businesses, but employers can seek a waiver if compliance would cause undue hardship. Examples of hardship as cited in the ordinance include requiring a restaurant to remove seating or a shop to eliminate retail space to create a lactation area.
Katy Tang, a representative on the San Francisco Board of Supervisors who introduced the legislation, tried to be sympathetic to the challenges businesses face in complying with the city's myriad regulatory requirements. "Small businesses are constantly bearing the brunt of our progressive policies in San Francisco," said Tang's legislative aide, Ashley Summers.
The ordinance requires lactation rooms to be clean and safe and to contain a surface or shelf for a breast pump and personal items, a seat, electrical access, and a nearby refrigerator and sink. Employers may provide a multipurpose room that is used for lactation and other personal reasons, but nursing moms must have priority to use the room when they need it.
'Have That Conversation'
The San Francisco ordinance is more likely to impact hourly workers whose schedules and breaks are regulated by state law and who don't have their own offices and may lack access to a clean, private place to express milk. Those women may also feel uncomfortable requesting an accommodation, Summers said.
The city's Department of Public Health is drafting a policy employers can distribute to their staffs as well as a request form for workers. Then, she said, "it's up to the employee and employer to have that conversation" about how to handle scheduling, breaks and work hours.
The ordinance also requires that employers keep a record of employees' lactation accommodation requests and explanations of how they were accommodated. They must retain those records for three years.
Pumps and Refrigerators
Howser, the lactation consultant, praised Bay Area-based businesses Google, Facebook and Salesforce for providing $1,500 hospital-grade breast pumps in their lactation rooms. Providing pumps is recommended under the ordinance but not required.
Breast-feeding employees with access to hospital-grade pumps typically take shorter breaks because these pumps are so efficient and their users don't have to lug them to and from the rooms. "From a time-cost point of view, it's very smart," she said.
Some businesses provide a dedicated refrigerator for breast milk. Howser said that's ideal. A secure lactation room accessible only to nursing mothers can also prevent the unlikely but nonetheless disturbing theft of breast milk, as reported last month to a Slate advice columnist.
Policies and Practices
San Francisco businesses should be sure to amend their employee handbooks to include the provisions of the new ordinance, Gehrke said, and be aware that construction or renovations of commercial space may trigger a requirement to add lactation space.
Lactation rooms must be included in commercial construction or renovation projects of at least $1 million and 15,000 square feet. The lactation rooms must be at least 50 square feet, be lockable from the inside, and have hot and cold running water.
June D. Bell, a regular contributor to SHRM, covers legal issues for a variety of publications. Contact her at firstname.lastname@example.org.
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