Overview: Baltimore has enacted new lactation accommodation requirements, including a requirement for covered employers to adopt a lactation room policy.
Effective Date: April 14, 2019
Details:
Lactation Breaks:
Employers of 2 or more employees must provide a reasonable amount of break time to accommodate an employee who desires to express breast milk. If possible, the break time must run concurrently with any paid rest or break time already required by law or otherwise authorized for the employee. Break time that does not run concurrently with paid rest or break time required by law or otherwise authorized for the employee may be unpaid.
Room Requirements:
Covered employers must also provide a lactation location, other than a bathroom or a closet, that is in close proximity to the employee's work area and that shields its occupants from view and from intrusion by coworkers or others. "Close proximity" means no more than 500 feet and two adjacent floors from the furthest employee work area being served. The lactation location may include the place where the employee normally works, if that area otherwise meets the specifications for a lactation location under the ordinance. The lactation location must:
· be safe, clean, and free of toxic or hazardous materials;
· limit access to it by a door that can be locked from the inside; and
· contain a surface on which to place a breast pump and other personal items, a place to sit, at least one electrical outlet, and, unless elsewhere provided in close proximity to the employee's work area, a sink with running hot and cold water and a refrigerator in which the employee can store milk.
An employer may provide a lactation location that is also used for other purposes, so long as:
· throughout the period of any employee's need to express milk, the primary function is its use as a lactation location;
· during that period, the location's use for lactation takes precedence over all other purposes; and
· the employer provides notice to all other employees that the location's primary function is a lactation location and that this purpose takes precedence over all other purposes for using the location.
If an employer's workspace is inadequate to satisfy the requirements for providing a lactation location and other employers are located within the same building, the employer may fulfill the requirements of the ordinance by providing a lactation location that is shared by two or more employers in the building, meets the requirements for a lactation location, and that can accommodate the number of employees who need to use it at any given time.
Undue Hardship:
An employer may apply to the Baltimore Community Relations Commission for a waiver or variance from the ordinance's requirements. The employer must demonstrate that compliance would impose an undue hardship by causing significant expense or operational difficulty when considered in relation to the employer's size, financial resources, and nature or structure of the employer's operations. An employer may also apply to the Commission to designate a temporary lactation location as a variance, if a permanent lactation location or multipurpose room used as a lactation location would impose an undue hardship. The temporary lactation location could be created by using a screen or curtains, and must meet the following specifications:
· the means of creation and the features of the location (shelf/table, seating, etc.) should not be modified during the duration of an employee's need to express milk;
· while an employee expresses milk, the location should be free from intrusion by other employees by means of a latch or other closure mechanism;
· the location should have signage visible to other employees designating the space as a lactation location for the duration of an employee's need to express milk; and
· the employer should provide notice to other employees that the space is being used as a temporary lactation location and should not be disturbed.
Policy Requirements:
Covered employers must also develop and implement a written lactation accommodation policy that:
· contains a statement that employees have a legal right to request lactation accommodation;
· include the employer's process for requesting accommodation, including
· the means by which an employee must submit the request to the employer;
· a requirement that the employer must respond to the employee within 5 business days; and
· a requirement that the employer and employee engage in an interactive process to determine lactation breaks and a lactation location appropriate to the employee's needs;
· state that, whenever the employer does not provide lactation breaks or a lactation location, or provides a lactation location that does not fully comply with the ordinance, or asserts any waiver or variance granted, the employer will be required to describe, in a written response to the request, the specific bases on which the employer has done so;
· state that any employee aggrieved by an alleged violation of the ordinance may file a complaint with the Commission; and
· state that retaliation against an employee for exercising rights under the ordinance is prohibited.
An employer must distribute a copy of the policy to new employees upon hire, and to existing employees within 10 calendar days of any modification to the policy. For employers that maintain an employee handbook or set of written policies that it distributes to employees, the lactation accommodation policy must appear in the handbook or set of policies. An employer must also provide a copy of the policy to any employee who requests or inquires about pregnancy or parental leave.
Recordkeeping:
The employer must retain records of all employee requests for accommodation as well as copies of all written responses to employees' requests for accommodation for a period of 3 years. The records must include:
· the employee's name;
· the date of the initial request and of any update to the request;
· a copy of all written or digital correspondence by or on behalf of the employee and the employer; and
· a description of the employer's actions taken to resolve the request.
Failure to retain the required records or provide the Commission with access to the records creates a presumption that the employer has violated the ordinance, absent clear and convincing evidence otherwise.
Action Required: Employers in Baltimore should ensure compliance with requirements of the law, including issuing a written lactation policy. Covered employers should also train supervisors on how to respond to accommodation requests.
Please contact your dedicated service professional with any questions.
*Produced in partnership with Littler Mendelson P.C.
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