Lactation Rights

Gov §12926 expands the definition of sex discrimination in civil rights law to include pregnancy, childbirth and breastfeeding, plus any medically related conditions regarding pregnancy, childbirth and breastfeeding. This means that under both state and federal law, an employee cannot be punished, reprimanded, fired, or penalized in any way for requesting lactation accommodation even if the accommodation is ultimately denied. Employees also can’t be penalized for taking job-protected leave under this law.

Resources: Lactation Advocacy Toolkit; Parenting/Pregnancy + My Job

In California, a mother may breastfeed her child in any location, public or private (except the private home or residence of another) where both mother and child are otherwise authorized to be present. The use of a cover is neither required or recommended by law. This includes in city, county and state buildings, churches, stores, retail centers, restaurants and school campuses. CCS §43.3, Welfare and Institutions Code § 11218 

Resources: Breastfeeding in Public

Procuring, processing, distributing or using human milk for the purpose of human consumption is a service. HSC §1647 allows for the creation and operation of nonprofit human milk banks in California, and also gives them legal protections in accepting milk from lactating donors. Hospitals that store milk collected from a mother for her own child must comply with the most current standards established by the Human Milk Banking Association of North America (HMBANA). HSC §1648 specifies milk collected from a mother exclusively for the use of her own child doesn’t have to be screened or tested. HSC §1200 – 1796.70 governs the regulation and licensing of tissue banks, including renewable tissue like blood, sperm, oocytes, and milk. 

Resources: CDC Guidelines and Recommendations; HMBANA Standards for Milk Banking; FDA Guidelines. 

Jury summons language referencing the rules for breastfeeding mothers is standardized across the state. The mother of a breast-fed child may postpone jury duty for a period of up to one year. Courts should take all measures to eliminate the need for the mother to physically appear in court to make this request. At the end of the one-year period, jury duty may be further postponed upon written request by the mother of a breast-fed child. CCP §210.5

Resources: ACLU Lactation Rights; Breastfeeding and Lactation Accommodations Toolkit 

California has a collection of laws unique in the protections afforded to lactating employees in the workplace, which makes this state among those with the strongest rights for employees who wish to express milk at work. Under these laws, employers must provide:

• • • A reasonable amount of break time to express milk each time the employee has the need to do so. The break time shall, if possible, run concurrently with breaks already provided to the employee. If the need to express milk falls outside of the rest time authorized for the employee, the break time shall be unpaid. Employers do not have to provide break time if it would seriously disrupt operations.
    • The use of a room or other location for the employee to express milk in private. The room cannot be a bathroom and must be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk. The lactation room or location must: be safe, clean and free from 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 station) needed to operate an electric or battery-operated breast pump. If the room has multiple purposes, the use of the room for lactation takes precedence over all other uses but only for the time it’s in use for lactation purposes. The lactation room can be temporary so long as it meets the requirements listed above. For agricultural workers, the lactation space can be inside an air-conditioned vehicle so long as it’s private, enclosed and shaded. If a worksite houses multiple employers, they can share a single lactation space for their employees.
    • Access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace. If a fridge can’t be provided, the employer may provide another device suitable for storing milk, such as a cooler.

If an employer can’t provide break time or a location that complies with the above requirements, they must provide a written response to the employee. Employers must also develop and implement a policy regarding lactation accommodation that includes the following:

• • • A statement about an employee’s right to request lactation accommodation.
    • The process by which the employee makes the request.
    • An employer’s obligation to respond to the request.
    • A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of a right under this chapter.

The policy must be included in an employee handbook or set of policies that the employer makes available to employees. The employer must distribute the policy to new employees upon hiring and when employees ask about or request parental leave.

Some employers with fewer than 50 employees may be exempt from these requirements if they can demonstrate compliance imposes undue hardship. If they can show compliance causes significant difficulty or expense, they must make reasonable efforts to provide the employee with space that’s private and near their work area to express milk in private. LAB §1030-1034

Though federal law provides hourly employees the right to lactation accommodation for 12 months, California has no such limit. Employees in California have the right to lactation accommodation for as long as they need to express milk at work. Employers cannot require employees to submit any documentation regarding the need to express breast milk at work.

Resources: Department of Industrial Relations; Department of Public Health; Know Your Breastfeeding Rights; Legal Aid at Work Lactation in the Workplace; What You Need to Know About the “Break Time for Nursing Mothers” Law.

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To make a complaint or get support with lactation accommodation: If you feel your employer is not providing you with adequate break time and/or a place to express milk as provided for in LAB §1030, you may file a report/claim with the Labor Commissioner’s Bureau of Field Enforcement (BOFE) at the BOFE office nearest your place of employment.

HSC §123361 states that to the extent that federal funds and private grants or donations are made available for this purpose, the State Department of Public Health shall expand the breastfeeding peer counseling program at local agency California Special Supplemental Food Program for Women, Infants, and Children (WIC) sites. WIC §14134.55 requires the department to streamline and simplify existing Medi-Cal program procedures to improve access to lactation supports and breast pumps among Medi-Cal recipients.

EDC §66271.9 states that California Community Colleges (CCC) and the California State University (CSU) shall provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breast-feed an infant child, or address other needs related to breastfeeding. Satellite campuses of these systems and the University of California campuses are encouraged to follow this policy but not required. EDC §222 applies to schools operated by a school district or a county office of education, the California School for the Deaf, the California School for the Blind, and charter schools. This section of Ed Code requires the listed schools to provide reasonable accommodations to a lactating pupil on a school campus to express breast milk, breastfeed an infant child, or address other needs related to breast-feeding.

Resources: Raising the Grade for Breastfeeding Access in California Schools; Opportunities for Teens; Breaking Down Educational Barriers for California’s Pregnant and Parenting Students; BreastfeedingLA resources for Los Angeles County; Sample School Board Policy for Married/Pregnant/Parenting Students; Sample School Board Policy for Personnel Lactation Accommodation. 

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To make a complaint or get support with your lactation rights at school: Your campus or district Title IX coordinator is your initial point of contact when your rights to lactation accommodation are denied. The California Department of Education has Uniform Complaint Procedures for students who are bullied, harassed or discriminated against in school to file formal complaints using this form. Complaints must be filed within six months of the incident.

All general acute-care hospitals that provide maternity care to also make lactation consultants available to postpartum parents, or to provide information on where to receive information on breastfeeding. The Hospital Infant Feeding Act requires all perinatal hospitals to have an infant-feeding policy that utilizes guidance provided by the Baby-Friendly Hospital Initiative or the State Department of Public Health Model Hospital Policy Recommendations. All perinatal hospitals to adopt the “Ten Steps to Successful Breastfeeding,” as adopted by Baby-Friendly USA, per the Baby-Friendly Hospital Initiative, or an alternate process adopted by a health care service plan that includes evidence-based policies and practices and targeted outcomes, or the Model Hospital Policy Recommendations by January 1, 2025. The state shall also recommend training to improve breast-feeding rates among mothers and infants for general acute care hospitals that provide maternity care and have exclusive patient breast-feeding rates in the lowest 25 percent. HSC §1257

HSC §123360-123367 requires the State Department of Public Health to include the promotion of chest/breastfeeding in its public service campaigns. The state must also develop a model eight-hour training course of hospital policies and recommendations promoting exclusive breastfeeding.

Gov §50479  requires major public airports (1 million enplanements or more) to provide space at each airport terminal behind the airport security screening area for members of the public to express breastmilk in private. San Diego International Airport is exempt from certain aspects of this law until renovated. Public Law 116–190 requires airports across the nation to provide lactation rooms that are accessible to the public, including small hub airports.

TSA Special Procedures allow for infant-formula, breast milk and juice for infants or toddlers in reasonable quantities through the security checkpoint. Remove these items from your carry-on bag to be screened separately from the rest of your belongings. Inform the TSA officer at the beginning of the screening process that you carry formula, breast milk and juice in excess of 3.4 ounces in your carry-on bag. These liquids are typically screened by X-ray.

TSA officers may want to test your breast milk for explosives or concealed prohibited items. Officers may ask you to open the container and/or have you transfer a small quantity of the liquid to a separate empty container or dispose of a small quantity, if feasible. You can say no. To avoid any confusion, print out the TSA guidelines and your airline’s guidelines regarding breast milk, carrying on your pump and pumping on the plane.

PUC §99176 requires certain transit stations in Bakersfield, Oakland, Los Angeles, Stockton, Sacramento, San Francisco, San Jose, San Diego and Fresno to include a lactation room if any construction or renovation begins on or after Jan. 21, 2021.

Resources: TSA Guidelines for Traveling with Children; Fly Fearlessly With Breast Milk: Your TSA Rights in Plain Speak

Penal Code § 4002.5 requires the sheriff of each county or the administrator of each county jail to develop and implement an infant and toddler breast milk feeding policy for lactating inmates detained in or sentenced to a county jail. The policy shall be based on currently accepted best practices.

Resources: Supporting Lactation During Incarceration; Supporting Lactation in Jails Toolkit: Implementing a Model Policy to Meet California Penal Code § 4002.5; Lactation Rights While Incarcerated or in Immigration Detention; Reproductive health care in California Jails; Breastfeeding in Correctional Settings

No current laws require courts to decide custody and visitation based on whether a child is still breastfeeding. Instead the judge’s job is to determine what is in the best interests of the baby, including nap and feeding schedules. There is no way to predict a judge’s priorities or how they’ll rule when it comes to custody and visitation, even if the child in question is being breastfed.

Resources: Custody and Breastfeeding Toolkit; Creating a Parenting Place for Children Under Three; Breastfeeding and Visitation or Custody; What To Know About Breastfeeding And Custody Issues