What Does Washington Law Say About Lactation at Work?

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Washington Law: Expression of Breast Milk in the Workplace–Reasonable Accommodation

On July 28, 2019, Governor Jay Inslee signed an amendment to a law that requires employers in Washington State to allow employees to pump breast milk at work.

In this article, we will examine the changes and discuss the impact this will have on businesses.

The Expression of Breast Milk in the Workplace law was originally passed in July 2017, and it was called the Healthy Starts Act (RCW 43.10.005), which you can read in its entirety here.

In the 2019 version, a few sections were defined with additional accommodation for pumping breast milk.

Here is the exact wording, taken directly from the final signed law at the Washington State Legislature website. (Amended portions are indicated with bold, italics, and underline.)


Sec. 1. RCW 43.10.005 and 2017 c 294 s 3 are each amended to read as follows:

(1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) “Employer” has the same meaning as and shall be interpreted consistent with how that term is defined in RCW 49.60.040, except that for the purposes of this section only the threshold of employees must be fifteen or more.

(b) “Pregnancy” includes the employee’s pregnancy and pregnancy related health conditions, including the need to express breast milk.

(viii) Providing reasonable break time for an employee to express breast milk for two years after the child’s birth each time the employee has need to express the milk and providing a private location, other than a bathroom, if such a location exists at the place of business or worksite, which may be used by the employee to express breast milk. If the business location does not have a space for the employee to express milk, the employer shall work with the employee to identify a convenient location and work schedule to accommodate their needs. …


A Deep-Dive Into the Changes

The 2017 version of the Healthy Starts Act did not specifically indicate what employers should do for employees who want to breastfeed their children. These area were left up to interpretation.

With the July 2019 amendment, Washington state employers are instructed to do a few things differently.

1. The law applies to employers with 15 or more employees.

Although every business can benefit from offering a lactation program, only companies with fifteen or more staff are legally required to do so.

2. Pregnancy accommodations will now include “the need to express breast milk.”

Previously, there was no specific state instruction for employers to accommodate for breast milk pumping. This has now been updated.

3. Reasonable break time each time an employee needs to pump breast milk.

This wording instructs employers to not withhold additional breaks if the mother needs them (which is definitely a normal occurrence, as milk production changes from week to week!)

4. Allow break time to pump for two (2) years after a baby’s birth to pump breast milk.

This change allows employees to pump for up to 2 full years after birth, which is a full year beyond the federal requirement.

5. Provide a private location, other than a bathroom, to express milk.

A restroom space is not hygienic and should not be used to pump milk. This law mirrors the federal law, which requires that employers set aside a space that is private, safe, and comfortable enough for the employee to pump her breast milk as needed.

6. Coordinate with the employee.

If there is no lactation space at the work location, the employer needs to coordinate with the employee to find a location and schedule that is most accommodating for their needs.

 

By writing the law this way, Washington employers are instructed to design a solution alongside their employees. Every business is different, and what works for one mom might not be right for another mom.

Source: Washington State Legislature


Here is the Washington State law in its entirety:

CERTIFICATION OF ENROLLMENT

SUBSTITUTE HOUSE BILL 1930

Chapter 134, Laws of 2019

66th Legislature

2019 Regular Session

EXPRESSION OF BREAST MILK IN THE WORKPLACE–REASONABLE ACCOMMODATION

EFFECTIVE DATE: July 28, 2019

Passed by the House March 7, 2019

Yeas 96 Nays 1

FRANK CHOPP Speaker of the House of Representatives

Passed by the Senate April 12, 2019

Yeas 46 Nays 0

CYRUS HABIB President of the Senate

Approved April 24, 2019 2:38 PM

CERTIFICATE

I, Bernard Dean, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is SUBSTITUTE HOUSE BILL 1930 as passed by House of Representatives and the Senate on the dates hereon set forth.

BERNARD DEAN Chief Clerk

FILED April 25, 2019

JAY INSLEE Governor of the State of Washington

SUBSTITUTE HOUSE BILL 1930

Passed Legislature – 2019 Regular Session

State of Washington 66th Legislature 2019 Regular Session

By House Labor & Workplace Standards (originally sponsored by Representatives Doglio, Dolan, Jinkins, Reeves, Shewmake, Stanford, Pollet, Macri, Senn, and Ormsby)

READ FIRST TIME 02/22/19.

AN ACT Relating to providing reasonable accommodation for the expression of breast milk in the workplace; and amending RCW 43.10.005.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 43.10.005 and 2017 c 294 s 3 are each amended to read as follows:

(1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) “Employer” has the same meaning as and shall be interpreted consistent with how that term is defined in RCW 49.60.040, except that for the purposes of this section only the threshold of employees must be fifteen or more.

(b) “Pregnancy” includes the employee’s pregnancy and pregnancy related health conditions, including the need to express breast milk.

(c) “Reasonable accommodation” means:

(i) Providing more frequent, longer, or flexible restroom breaks;

(ii) Modifying a no food or drink policy;

(iii) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s work station;

(iv) Providing seating or allowing the employee to sit more frequently if her job requires her to stand;

(v) Providing for a temporary transfer to a less strenuous or less hazardous position;

(vi) Providing assistance with manual labor and limits on lifting;

(vii) Scheduling flexibility for prenatal visits; ((and))

(viii) Providing reasonable break time for an employee to express breast milk for two years after the child’s birth each time the employee has need to express the milk and providing a private location, other than a bathroom, if such a location exists at the place of business or worksite, which may be used by the employee to express breast milk. If the business location does not have a space for the employee to express milk, the employer shall work with the employee to identify a convenient location and work schedule to accommodate their needs; and

(ix) Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.

(d) “Undue hardship” means an action requiring significant difficulty or expense. An employer may not claim undue hardship for the accommodations under (c)(i), (ii), and (iv) of this subsection, or for limits on lifting over seventeen pounds.

(2) It is an unfair practice for any employer to:

(a) Fail or refuse to make reasonable accommodation for an employee for pregnancy, unless the employer can demonstrate that doing so would impose an undue hardship on the employer’s program, enterprise, or business;

(b) Take adverse action against an employee who requests, declines, or uses an accommodation under this section that affects the terms, conditions, or privileges of employment;

(c) Deny employment opportunities to an otherwise qualified employee if such denial is based on the employer’s need to make 36 reasonable accommodation required by this section;

(d) Require an employee to take leave if another reasonable accommodation can be provided for the employee’s pregnancy.

(3) An employer may request that the employee provide written certification from her treating health care professional regarding the need for reasonable accommodation, except for accommodations listed in subsection (1)(d) of this section.

(4)(a) This section does not require an employer to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation.

(b) This section does not require an employer to discharge any employee, transfer any employee with more seniority, or promote any 9 employee who is not qualified to perform the job, unless the employer does so or would do so to accommodate other classes of employees who need accommodation.

(5) The department of labor and industries must provide online education materials explaining the respective rights and responsibilities of employers and employees who have a health condition related to pregnancy or childbirth. The online education materials must be prominently displayed on the department’s web site.

(6) The attorney general shall investigate complaints and enforce this section, including by conference and conciliation. In addition to the complaint process with the attorney general, any person believed to be injured by a violation of this section has a civil cause of action in court to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit and reasonable attorneys’ fees or any other appropriate remedy authorized by state or federal law.

(7) This section does not preempt, limit, diminish, or otherwise affect any other provision of law relating to sex discrimination or pregnancy, or in any way diminish or limit legal protections or coverage for pregnancy, childbirth, or a pregnancy-related health condition.

Passed by the House March 7, 2019.

Passed by the Senate April 12, 2019.

Approved by the Governor April 24, 2019.

Filed in Office of Secretary of State April 25, 2019.

— END –

Effective Date: July 28, 2019

Source: Washington State Legislature


Grace LaConte is a business consultant, writer, workplace equity strategist, and the founder of LaConte Consulting. Her risk management tools are used around the globe, and she has successfully reversed toxic work environments for clients in the healthcare and non-profit fields. Grace specializes in lactation law compliance & policy development, reducing staff turnover after maternity leave, and creating a participatory work culture.

Connect with her on Instagram and Twitter @lacontestrategy.

Published by Grace LaConte

Grace LaConte is a business strategist, writer, and workplace equity advocate whose risk management graphics are used around the globe. She specializes in finding hidden threats and opportunities in organizations that employ working parents. Grace is the host of the What's Wrong with Your Business? Podcast, which provides tools to adapt in a rapidly changing market. Connect with her on Instagram and Twitter @lacontestrategy.

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