Baltimore’s lactation accommodation law requires employers to provide breaks for expressing breast milk, create a distinct location where employees can express breast milk, and develop a written lactation accommodation policy.
The Lactation Accommodations in the Workplace Act (the Act) will take effect in Baltimore on April 14. The Act applies to any employer (other than the federal or state governments) that employs two or more full-time equivalent employees who work in the City of Baltimore, and imposes several requirements for those employers.
Under the Act, an employer must provide a reasonable amount of break time to accommodate an employee who desires to express breast milk (a Lactation Break). If possible, a Lactation Break may run concurrently with any paid rest or break time already provided to the employee. A Lactation Break that does not run concurrently with paid rest or break time may be unpaid.
The Act requires that an employer provide a location, other than a bathroom or closet, where an employee can express breast milk that is no more than 500 feet and two adjacent floors from the furthest employee work area and shields its occupants from view and intrusion by others (the Lactation Room).[1] The Lactation Room must be safe, clean, and free of toxic or hazardous chemicals and must have a door that can be locked from the inside. The Lactation Room must also have the following:
The Lactation Room may be used for purposes other than expressing breast milk, so long as (1) its primary function remains use as a Lactation Room throughout the period of any employee’s need to express breast milk; (2) its use as a Lactation Room takes precedence over all other functions and uses; and (3) the employer provides notice to all employees that the Lactation Room’s primary function is its use for employees to express breast milk and this primary function takes precedence over all other functions and uses.
Employers whose workspace is inadequate to satisfy the Lactation Room’s requirements and who work in a multi-tenant building may satisfy their obligations under the Act by providing a Lactation Room that is shared by multiple employers in the same building.
Pursuant to the Act, an employer must develop and implement a written lactation accommodation policy. The policy must include the following:
An employer must also maintain records of all employee requests for a lactation accommodation for a period of three years from the date of the request. The records must include the name of the employee, the date of the employee’s initial request and any update to the initial request, a copy of all written or digital correspondence by or on behalf of the employee and employer, and a description of how the employer resolved the employee’s request.
While the Act does not contain a separate posting requirement, an employer must provide its employees with notice of their rights under the Act by distributing a copy of the employer’s lactation accommodation policy at three separate intervals: (1) upon hire; (2) within 10 calendar days of any modification to the policy; and (3) to any employee who requests or enquires about pregnancy or parental leave. Furthermore, an employer must include its lactation accommodation policy in its handbook or any set of policies that it makes available to its employees.
The Act prohibits an employer from retaliating or discriminating against any person for exercising any rights provided under the Act or alleging a violation of the Act. While the Act does not provide for a private right of action, any person who alleges a violation of the Act may file an administrative complaint with the Commission. The Commission may award penalties and equitable relief, including back pay, reinstatement, compensatory damages, and reasonable attorney fees. The Act also provides for misdemeanor liability and jail time as well as a fine of up to $500.
Baltimore joins an increasing number of jurisdictions, including California and New York City, that have enacted laws related to the provision of lactation accommodations for employees in the workplace. Critically, these state and local laws often contain employer-mandated lactation accommodation requirements that are significantly more comprehensive than those under the Fair Labor Standards Act and Patient Protection and Affordable Care Act. Companies with employees in Baltimore should review, create, and/or modify existing lactation policies to ensure compliance with requirements under the Act, including the provision of a distinct location whose primary function is for employees to express and store breast milk. Baltimore employers should also ensure that their human resource departments are aware of the different employee notice requirements, including the provision of a copy of the employer’s lactation accommodation policy to all new hires following the Act’s effective date.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Lincoln O. Bisbee
Jocelyn R. Cuttino
[1] An employer may apply to the Baltimore Community Relations Commission (the Commission) for a waiver or variance related to the Lactation Break and/or Lactation Room requirements if the employer can demonstrate that abiding by the requirements would impose an undue hardship. The Act defines an undue hardship as one that causes significant expense or operational difficulty when considered in relation to the size, financial resources, nature, or structure of the employer’s business.