Expanded Protections in 2020 for New Parents and Families

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Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

California provides a number of protections for employees who are pregnant or nursing, as well as for new parents and families. Among them are:

  • Fair Employment and Housing Act (FEHA) – Prohibition against harassment or discrimination on the basis of pregnancy, childbirth, breastfeeding and related medical conditions (employers with five or more employees)
  • Pregnancy Disability Leave (PDL) – Up to four months of unpaid job-protected leave when an employee is disabled by pregnancy, childbirth or a related medical condition (employers with 5 or more employees)
  • California Family Rights Act (CFRA) – Up to 12 workweeks of unpaid job-protected leave for a qualified employee for the employee’s own “serious health condition” (as defined), to care for a family member with a serious health condition, or for bonding within the first year after the birth of the employee's child, or placement of a child for adoption or foster care (employers with 50 or more employees)
  • New Parent Leave Act (NPLA) – Up to 12 weeks of unpaid job-protected leave for a qualified employee to bond with a newborn or child placed with the employee for adoption or foster care (unless covered by FMLA/CFRA (employers with 20 or more employees)
  • Paid Family Leave (PFL) – Up to six (6) weeks* of partial pay within any 12-month period when taking time off to care for a seriously ill family member or bond with a new child following their birth, adoption, or foster care placement (all employers)

* Eight (8) weeks as of July 1, 2020

  • Lactation Accommodation – A reasonable amount of break time to accommodate an lactating employee, and the use of a room or other location,* other than a bathroom, in close proximity to the employee’s work area for such purpose (all employers)

* See new requirements for 2020

The last two laws were recently amended as discussed below in order to better protect new parents and families.

Paid Family Leave (PFL)

SB 83 (Ch. 24, Committee on Budget and Fiscal Review) was enacted as urgency legislation in mid-2019. Among its many provisions was an expansion of California’s Family Temporary Disability Insurance program, also known as Paid Family Leave (PFL), scheduled to take effect July 1, 2020.

PFL currently provides up to six (6) weeks of partial pay within any 12-month period to employees who need to take time off from work to:

  • Care for a seriously ill family member (child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner); or
  • Bond with a new child entering the family through birth, adoption, or foster care placement

Beginning July 1, 2020, the PFL benefit will be extended from six (6) weeks to eight (8) weeks. SB 83 also requires the Governor to convene a task force to develop a proposal to increase the PFL benefit duration for bonding purposes to six (6) months by 2021–22. The proposal must consider, among other things, job protections for employees, wage replacement rates up to 90 percent for low wage workers, and a funding plan.

PFL does not provide a job-protected leave of absence; only wage replacement benefits similar to the Social Security Disability (SDI) program, which administers PFL. Job protected leave may be available under other applicable laws.

Reference: Unemployment Insurance Code §3301.

Changes to Lactation Accommodation Requirements

Under existing law, all employers are required to provide a reasonable amount of break time to accommodate an employee who wishes to express breast milk for their infant child. Prior to January 1, 2020, it also required the employer to make reasonable efforts to provide the employee with the use of a room or other location, other than a bathroom, in close proximity to the employee’s work area, for the employee to express milk in private.

Effective January 1, 2020, SB 142 (Ch. 720, Wiener) modified these location requirements as follows:

  • An employer shall provide an employee with the use of a room or other location. The qualifying words “make reasonable efforts to” are deleted, except in cases of undue hardship (see below).
  • A lactation room or location shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk. This may include the place where the employee normally works if it otherwise meets the legal requirements.

Additional Location Requirements Under SB 142

  • Room/Location Conditions: A lactation room or location must:
    • Be safe, clean, and free of hazardous materials
    • Contain a surface to place a breast pump and personal items
    • Contain a place to sit
    • Have access to electricity or alternative devices (e.g., extension cords, charging stations) needed to operate an electric or battery-powered breast pump
    • Be shielded from view, and free from intrusion while the employee is expressing milk
  • Sink and Refrigerator: The employer must provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace or, if a refrigerator cannot be provided, another cooling device suitable for storing milk (e.g., an employer-provided cooler)
  • If Using a Multipurpose Room: Use of the room for lactation shall take precedence over the other uses, but only for the time it is in use for lactation purposes.
  • Multi-Tenant Buildings/Multi-Employer Worksites: If the employer cannot provide a lactation location within the employer’s own workspace, it may provide a space shared among multiple employers within the building or worksite
  • Multi-Employer Worksites: Employers or general contractors coordinating a multi-employer worksite shall either:
    • Provide lactation accommodations; or
    • Provide a safe and secure location for a subcontractor employer to provide lactation accommodations on the worksite, within two (2) business days, upon written request of any subcontractor employer with an employee that requests an accommodation

Undue Hardship Exemption (only available to employers with under 50 employees): An employer that employs fewer than 50 employees may be exempt from a particular requirement (not the entire law) if it can demonstrate that the requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

If the employer can demonstrate that the requirement to provide an employee with the use of a room or other location, other than a bathroom, would impose such an undue hardship, 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, for the employee to express milk in private.

Prohibition Against Discharge/Discrimination/Retaliation: An employer is prohibited from discharging, discriminating or retaliating against an employee for exercising (or attempting to exercise) these rights.

Remedies for Noncompliance: The denial of reasonable break time or adequate space to express milk is now deemed a failure to provide a rest period under Labor Code §226.7, and the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided

In addition, an employee may report a violation to the Labor Commissioner, who may issue a citation. Civil penalties are increased from $100 per violation to $100 per day that an employee is denied reasonable break time or adequate space.

New Policy Requirement: SB 142 adds a new requirement for employers to develop and implement a lactation accommodation policy that includes:

  • An employee’s right to request lactation accommodation
  • The process to make the request
  • An employer’s obligation to respond to the request. If an employer cannot provide break time or a location that complies, the employer shall provide a written response to the employee
  • A statement about an employee’s right to file a complaint with the Labor Commissioner for violation of a right under this chapter

The employer shall include the policy in an employee handbook or set of policies made available to employees and distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave.

Reference: Amends Labor Code §§1030, 1031, and 1033; adds Labor Code §1034.

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

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