Silver Taube: Employers fail to provide lactation accommodations
A mother and her baby. Image courtesy of Pixabay.

    On July 28, Amazon warehouse worker Fernanda Torres filed a class action lawsuit alleging the company failed to provide lactation accommodations in violation of the law.

    Torres alleged Amazon’s breastfeeding workers are forced to take unpaid breaks to pump milk and risk discipline for not meeting quotas. She also alleged breastfeeding workers often wait in long lines to use the single room dedicated to pumping, and their paid breaks are not long enough to cover the time it takes to walk to the room, pump and clean up.

    There has been an 800% increase in lactation discrimination lawsuits in the last decade, according to a 2019 report from the Center for Worklife Law at the University of California, Hastings College of the Law. Nearly two-thirds of the cases studied in the report ended in job loss.

    On June 27, the American Academy of Pediatrics recommended breast feeding should continue, with other foods, for at least two years or for as long as mutually desired. According to the 2020 CDC Breastfeeding Report Card, 90.3% of Californians start out breastfeeding, but only 28.2% of babies exclusively breastfeed through six months.

    One major factor is many must choose between breastfeeding their babies and keeping their jobs. According to a 2016 University of Minnesota study, nearly 60% reported breastfeeding problems associated with return to work during the first two months postpartum, 59% reported inadequate break time to express milk, 45% lacked private space and only 40% had access to both accommodations.

    Lactating workers may suffer from breast infections, illness, early weaning, sexual harassment and job loss. Two of the cases cited in the report from the Center for Worklife Law involved a 911 dispatcher and a worker at a taqueria.

    The 911 dispatcher alleged she had to work in a soiled bra and suffered three breast infections after her supervisors refused to provide adequate accommodations. When she told her sergeant, he laughed, made a “moo” noise and walked away.

    The taqueria cashier worked from 5 p.m. to 2 a.m. After giving birth, she returned to work when her baby was one month old. On her first day back, she breastfed her newborn inside her car during her break. On her second day back, the taqueria owner forbade her from returning to work until she had weaned her baby.

    Under state and federal law, lactation rights are available to employees of all genders and gender expressions. Transgender men and gender-nonconforming people with lactation-related health needs have a right to be free from discrimination because of chestfeeding, breastfeeding, nursing and lactation.

    In California, every employer must provide a reasonable amount of break time to accommodate a worker desiring to express breast milk each time the employee has a need to express milk. The break time shall, if possible, run concurrently with any break time already provided to the worker. Break time for an employee that does not run concurrently need not be paid. California employers must provide a private lactation space, other than a bathroom, that must be near the employee’s workspace, is shielded from view and is free from intrusion while the employee uses the space.

    In addition, the room must meet the following requirements:

    • It must be safe, clean and free from hazardous materials.
    • It must contain a surface to place a breast pump and personal items.
    • It must have a place to sit.
    • It must have access to electricity or alternative devices, including but not limited to extension cords or charging stations needed to operate an electric or battery-powered breast pump.
    • It must have access to a sink with running water and a refrigerator or cooling device if a refrigerator is not feasible.

    A failure to comply with the requirement of an adequate space or reasonable break time could result in fines of $100 per day, in addition to penalties of one hour’s pay for each violation. Employers must also provide a written policy that includes instructions on how an employee can request an accommodation, how the employer should respond to the request according to the employer’s responsibility and how an employee can file a complaint. Employers must provide a copy of the policy to employees upon hire and when an employee makes an inquiry about or requests parental leave.

    The California Labor Commission enforces these laws. There are also state and federal discrimination and harassment laws enforced by the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission that may apply.

    The County of Santa Clara Office of Women’s Policy and Public Health Department offers a Family Friendly Workplace Certification (FFWC) Program to help raise awareness about workplace accommodations relating to pregnancy, parental leave, lactation and work-family balance. The program works to enable employers to meet or exceed state and federal employment laws and implement policies that support families as they balance responsibilities. Qualifying businesses receive a digital seal that can be used on marketing materials and are recognized on the FFWC Program webpage as a family-friendly business.

    A Family Friendly Workplace Guide describes the requirements for the four certification levels. Businesses and organizations must register for the mandatory certification training. A lactation expert at the Santa Clara County Public Health Department is also available to visit the workplace to provide a free consultation on lactation space that complies with the law.

    In 2009, the Society for Human Resource Management reported only 25% of companies surveyed made lactation accommodations. In 2011, the Surgeon General’s call to action outlined a broad based strategy to improve breastfeeding support that includes paid maternity leave, worksite accommodations for breastfeeding employees, and employer-provided comprehensive, high quality lactation support for their workers.

    In the 11 years since the report, employers have failed to make significant progress in implementing this strategy or even complying with the law. Programs like the FFWC can go a long way in ensuring employers achieve the Surgeon General’s goals.

    San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].

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