Seyfarth Synopsis: In June 2017, the San Francisco Board of Supervisors passed an ordinance requiring employers to provide a private “lactation location” where new mothers can pump their milk as well as a “lactation break” during the work day, in addition to other amenities. The ordinance is effective January 1, 2018 and is more expansive than current state and federal law requiring employers to make reasonable efforts to provide lactation breaks throughout the workday. In the wake of its passage and the approaching effective date, the City’s Office of Labor Standards Enforcement and Department of Public Health are issuing administrative guidance for employers.
San Francisco’s Lactation Ordinance Is More Comprehensive Than State and Federal Law
As we wrote a few months ago, San Francisco’s Lactation in the Workplace Ordinance goes into effect January 1, 2018. Virtually all San Francisco employers are covered; there is no minimum employee threshold that may exempt smaller employers from coverage. This latest ordinance is another example of the City’s ongoing effort to enact employment regulations with the goal of either addressing a perceived need in the absence of state or federal law (such as the City’s 2007 paid sick leave ordinance that went into effect over eight years before the California version) or, in the case of the lactation ordinance, exceed the requirements of existing law.
The ordinance calls for a private “lactation location” that must meet several requirements. The lactation location must not be a bathroom and must be (1) shielded from view, (2) free from intrusion by other employees or the public, (3) available as needed, (4) “in close proximity to employees’ work area,” and (5) safe, clean, and free of toxic hazardous materials. The employer also is required to provide the employee with a place to sit, a table/desk or surface to place a breast pump and personal items, access to electricity, a sink with running water, and a refrigerator. The ordinance also states that lactation break time “shall, if possible” run concurrently with any break time already provided to the employee, such as unpaid rest periods.
The ordinance’s requirements are certainly rooted in an important public policy addressing the health of new mothers and babies. But potential problems arise from the ordinance’s use of vague phrases such as “close proximity to employees’ work area.” How close does “close proximity” mean: the same room? Down the hall? In the same building? This means the ordinance is in dire need of clarification to help both employers and employees comply with its novel terms. Enter the San Francisco Office of Labor Standards Enforcement and Department of Public Health to provide guidance.
Administrative Guidance Sheds Light On Compliance Expectations
Perhaps recognizing its own shortcomings, the ordinance requires the San Francisco Department of Public Health to provide employers with guidance for best practices for accommodation, as well as a model policy and model lactation accommodation request form. To that end, the Department recently posted samples of a Lactation Accommodation Policy and Request for Lactation Accommodation that employers may use in its own operations or as guidance to develop its own policies.
The Department also posted a summary of legal requirements and best practices. The summary is based on the previous public memo issued by Supervisor Katy Tang, who is the supervisor responsible for drafting and proposing the ordinance. Interestingly, the “best practices” include “optional but highly recommended amenities” such as a hospital-grade breast pump, calendar or room reservation system, a full length mirror, Wi-Fi, “resource station” for educational literature, and lockers to place personal belongings. They also suggest temporary reduced hours, job sharing, flex time, telecommuting, and allowing the caregiver to bring the child to workplace for feedings. The ordinance currently does not require these amenities, but these best practices may foretell an expectation of how the City may interpret (or amend) the ordinance down the road.
City regulators may also issue interpreting regulations, but that would require adherence to a lengthy rulemaking process that would include the opportunity for stakeholders to provide public comment. We have been in frequent contact with the helpful analysts at the OLSE regarding additional guidance, and have been told that they are still working on the guidance in anticipation of the January 1, 2018 effective date. Of course, we will continue to update readers on any future developments.
The ordinance requires San Francisco employers to issue its lactation accommodation policy to employees, so employers should review and, if necessary, update their policies to comply. While the City has posted a sample policy and request form, sample policies are not always right for every employer. As always, employers still should ensure that any policy they implement and enforce is right for their own operations.
If you would like assistance with a review of your policies, please feel free to contact one of Seyfarth Shaw’s attorneys.