Employment Law

In years past, nursing mothers have found it exceedingly difficult or impossible to manage lactation at work. Whether it was a lack of sufficient breaks or a proper space to do so, it was simply infeasible for many to find the time or place to breastfeed their children or pump breastmilk.

The California legislature initially passed a 1998 resolution that merely encouraged employers to accommodate the needs of nursing mothers by providing a space for them to express breastmilk for their children. Four years later, it became state law to provide these employees with breaks and other important accommodations.

When the Affordable Care Act (ACA) passed in 2010, it became federal law for employers to provide lactation breaks for nursing mothers when the employer is subject to the Fair Labor Standards Act (and most are). Additionally, this federal statute mandated providing employees with reasonable unpaid breaks needed to express breastmilk for up to one year after their child’s birth.

At the beginning of 2020, however, California passed a new series of requirements in SB142 that exceed the ACA’s federal protection for lactation accommodation nationwide.

What SB142 Provides To Nursing Mothers as of 2020

Signed into law almost a year ago, SB142 is an act that amends sections of California’s labor code to expand protections for nursing mothers and provide a greater level of accommodation than ever before.

Lactation Location

While California employees have long enjoyed a requirement to provide a place other than the bathroom where nursing mothers can breastfeed or pump breastmilk, SB142 specified new requirements for this type of space at a worksite.

Under California law, a lactation location must:

• Be safe, clean, and free of any hazardous materials
• Be shielded from view and free from intrusion while an employee is using it to express breastmilk or feed
• Have a surface where the employee can place lactation gear (such as a breast pump) and other personal items
• Have a place for the employee to sit
• Have access to electricity by means of an outlet, extension cords, or battery power so as to power or charge a breast-pump

An employer must also provide a sink with running water and a refrigerator for storing milk (or a cooler) within a reasonable proximity to the employee’s workstation. Should a room with multiple uses include lactation as one such use (such as a meeting room), lactation must be considered its primary use and the room must be equipped as such.

Number & Duration of Lactation Breaks

California doesn’t explicitly state how many lactation breaks an employee may take or how long they are permitted to last. Instead, employers are required to provide a reasonable amount of time for employees to express breast milk. Breaks that can align with a non-exempt employee’s scheduled breaks are treated as such, however, the employer may not restrict the number of additional unpaid rest breaks the employee needs to express breast milk.

Employers Must Have Stated Lactation Policies

Another new requirement provided by SB142 requires employers to have a policy on lactation accommodation. Employees must be made away of this policy at the time of hire and when they ask about or request parental leave.

An employer’s policy must provide the following:

• A statement affirming the employee’s right to request accommodation for lactation
• Information about how the employee can request accommodation
• The employer’s obligation to respond to the request for lactation accommodation
• A statement that affirms the employee’s right to file a complaint about any violation of the law

Exceptions To Lactation Requirements

There are, of course, certain exceptions to California’s lactation accommodation laws that apply to certain employees and employers. These are typically applicable to smaller employers who are operating their businesses out of multi-tenant office buildings that may not be built with certain amenities.

When providing accommodation for lactation would provide a hardship upon the employer, only those with 50 or few employees can apply for an exemption. A hardship cannot be mere inconvenience – employers may only successfully obtain an exemption if they can prove that lactation accommodation would cause significant problems considering the employer’s size, nature of work, structure of business, or available financial resources.

Do You Need To Fight For Lactation Accommodation?

Haeggquist & Eck, LLP fights on behalf of employees whose rights were violated by their employers. We can assist nursing mothers who aren’t being given the time they are entitled to express breastmilk at work fight back for fair and just compensation from their employers. Rest assured that your rights are protected by law, and our attorneys can help you hold your employer accountable should you not be given the reasonable amount of time you need or any other reasonable lactation accommodation.

Schedule a free consultation with Haeggquist & Eck, LLP today to learn more. Contact us online or call (619) 342-8000 to get in touch with someone who can help.

They say it takes a village to raise a child. From school, daycare, and aftercare programs, to sports practices and summer camps, to childcare assistance from family members and friends, most parents rely on many people and programs outside of their home to manage the daily juggles (and struggles) of raising children. This is particularly true for working parents who need their village to go to work and provide for their families.

The COVID-19 pandemic immediately eliminated most in-person work, childcare, and in-person school across the country in 2020, and parents had to quickly adjust to working from home with their children. Parents shared many videos online regarding children bursting in on Zoom meetings or other disruptions to a parent’s work. While these videos can be amusing, they demonstrate a real problem for some parents who continue to work from home when their children might need to be home.

Though most schools reopened in person, many childcare centers had to close due to pandemic losses. Some parents lost their childcare and have not found another option yet. Further, parents who now work from home permanently will have school-aged children home over the summers and other school vacations. This can stress parents who need to remain professional while working from home and keep their jobs.

What can employees do to avoid losing their jobs because their kids are at home while working? Many states have laws to support working parents, but these laws do not necessarily apply to having children at home during remote work. Below are some options you might have to pause your job responsibilities if your child must be home.

Know that Your Employer Has the Right Fire You

Now that pandemic-related lockdowns are winding down, many employers are terminating employees if children disrupt their work while working from home. Employers are within their rights to do so in most states due to at-will employment. You do not have the legal right to work at home with your child, and at-will employment laws allow employers to fire you for any lawful reason.

Your employer cannot fire you for becoming pregnant or giving birth to a child. However, if you work remotely and your children are disrupting your job, there are no discrimination laws to protect against termination. Keep reading to learn about possible options to avoid termination if you must work at home with your children for a period.

Possible Paid Leave for COVID-19-Related Concerns

The federal COVID-19 paid leave laws expired in 2021, but some states still have active laws to provide employees with possible leave.

For example, California provides up to 80 hours of supplemental paid sick leave for employees who need to:

• Care for a child with COVID-19
• Isolate due to a positive COVID-19 test
• Care for a child due to a school or daycare closure for COVID-19 reasons

This law does not protect a parent who works at home with a child, but if your child needs to be home with you for COVID-19 reasons, you might qualify to take paid sick leave while caring for your child. Taking leave eliminates the risk that your child will do something to compromise your job while they are home. The supplemental paid leave expires on September 30, 2022, unless the state renews the measure.

Unpaid Leave Under California’s Family-School Partnership Act (FSPA)

In addition to paid sick leave, California’s FSPA provides employees with up to 40 hours of unpaid leave per year to participate in certain child-related activities. This includes having to find, enroll, or re-enroll a child in school or daycare, participate in school or daycare-related activities, or address a school- or daycare-related emergency.

The COVID-19 pandemic arguably falls within the emergency provision, which includes when an employee’s child cannot remain in school or with a childcare provider due to a “natural disaster.” The FSPA applies to all employers with more than 25 employees and prohibits employers from terminating, threatening termination, demoting, suspending, or otherwise discriminating against employees for taking such leave.

Other Potentially Applicable Leave Laws

California has other leave laws that may come into play for an employee who needs to care for their child for reasons not necessarily related to the pandemic. For example, the California Family Rights Act (CFRA)—which is the California equivalent of the federal Family and Medical Leave Act (FMLA)—provides eligible employees with up to 12 weeks of unpaid leave per year to care for a family member with a serious health condition and to bond with a new child, among other reasons.

The FMLA applies to employers with over 50 employees, but as of January 1, 2021, the CFRA applies to California employers with more than five employees, so most employees have this opportunity. We have more information on CFRA leave expansion should you want it.

The law protects employees who need to take CFRA leave, meaning employers cannot terminate, discipline, or otherwise discriminate against an employee for taking leave, and employees have the right to return to the same or a comparable position after their leave.

California’s Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) provides employees who have worked for their employer for at least 30 days with up to three days (or 24 hours) of paid sick leave per year, accrued at the rate of one hour per every 30 hours worked. Employees can start using them on their 90th day of employment. Employees can use HWHFA leave to care for a sick family member. Similar to other leave laws, employers cannot terminate, discipline, or otherwise discriminate against employees for taking HWHFA leave.

Some Terminations Are Wrongful

Just because employers can fire some employees for having children at home does not mean that every termination is lawful. Some employers might use a child as a pretextual reason to fire an employee for an unlawful reason. You cannot expect your employer to admit to wrongful termination, so you need a legal professional to investigate what happened and whether your employer violated your rights.

What makes a termination wrongful?

• Discrimination
• Retaliation
• Reporting unlawful conduct of an employer
• Refusing to engage in unlawful conduct

Some employers retaliate against remote employees who request leave under CFRA or another applicable law. Termination because you requested leave is unlawful.

If an employment attorney determines your termination was wrongful, they can take steps to hold your employer accountable. This can include filing a claim with the state or in court to seek compensation for your losses due to the termination.

Need Legal Assistance from an Employment Lawyer?

If your employer refuses to provide you with leave that you qualify for under the law, or your employer takes adverse action against you because you take qualified leave, contact an employment law firm immediately. If your child needs to be home while you work, there are options to protect your job. Contact us for legal help today.

On Sept. 17, 2020, Governor Newsom signed CA S.B. 1383 into law, ensuring job-protected family leave for Californians who work for an employer with five or more employees to bond with a new child or to care for themselves or a family member. The new law, which is set forth in the newly added Government Code §12945.2, is set to take effect on Jan. 1, 2021.

S.B. 1383 expands rights under the pre-existing California Family Rights Act (CFRA), which already provides leave protections for workers at larger employers who employ 50 or more workers. Now, with the new law, those who work for small businesses will also receive job-protected leave.

“Californians deserve to be able to take time off to care for themselves or a sick family member without fearing they’ll lose their job,” Newsom said in a statement.

Like the former CFRA, employers with five or more employees will now be required to grant up to 12 workweeks of “family care and medical” leave in any 12-month period to employees who have at least 1,250 hours of service with the employer during the previous 12-month period. The employer must guarantee the employee the same or comparable job position upon return from leave.

Family care and medical leave may be taken for any of the following reasons:

• Birth of a child of the employee or placement of a foster or adopted child with the employee;
• To care for a family member (child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) with a serious medical condition;
• Employee’s own serious health condition that makes the employee unable to perform the functions of his or her position (except for leave taken for pregnancy-related disability, childbirth, or related medical conditions, which are covered by other laws); and/or
• A qualifying exigency related to active duty or call to covered duty of an employee’s spouse, domestic partner, child, or parent, in the Armed Forces of the United States.

Employers may not interfere with or deny employees’ rights to exercise family care and medical leave. Similarly, employees are protected from retaliation by their employers for requesting or using family care and medical leave.

If you feel your employer has violated your family care and medical leave rights, you may be able to hold the company liable for damages.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.