Starting on April 15, 2019, a new Baltimore City Ordinance requires employers in Baltimore City to provide lactation accommodations to breastfeeding employees. Employers must also develop a written lactation accommodations policy
Who Is Covered. Employers of two or more full-time equivalent employees must comply with the new ordinance.
There are several exceptions to the employees covered by the new ordinance: volunteers, those employed by a parent/spouse/child, and domestic workers in a private residence.
Time and Location. Under the new ordinance, employers must provide both a reasonable amount of break time and a location for employees to express breast milk.
If possible, the required break time must run concurrently with any paid rest or break time already required by law (such as for retail employees or minor employees) or already provided to the employee. Any additional break time necessary may be unpaid.
The specified location is subject to a number of strict requirements:
- Be within “close proximity to the employee’s work area,” meaning no more than 500 feet and two adjacent floors from the furthest work area being served.
- Shield any occupants from view and from intrusion from others.
- May not be a bathroom or a closet.
- Be safe, clean, and free of toxic or hazardous materials.
- Have a door that is able to be locked from the inside.
- Have a surface, such as a table or shelf, on which a breast pump and other items may be placed.
- Have a place to sit.
- Have at least one electrical outlet.
- Have a sink with running hot and cold water and a refrigerator for storage of breast milk, unless these are provided elsewhere in close proximity to the employee’s work area, as defined above.
The ordinance provides that the lactation location may be used for other purposes as long as priority is given to the breastfeeding employee’s needs. Other employees using the location must be notified that the location’s primary function is its use as a “lactation location” and that this function takes precedence over all others.
If the employer’s workspace is inadequate to meet the location requirements set forth above and it is located in a multi-tenant building, the employer may share a lactation location with other tenants. This shared location must still meet the above-listed requirements. It must also be able to accommodate the number of employees wishing to use it at any given time.
Hardship Waiver or Variance. An employer may apply to the Baltimore City Community Relations Commission for a waiver or variance of any of the listed requirements that the employer can show would impose an undue hardship, meaning a significant expense or operational difficulty when considered in relation to the size, financial resources, nature or structure of the employer’s business.
The ordinance sets forth one such permitted variance, which would be the creation of a temporary lactation location, using screening or curtains with a latch or some closure mechanism to prevent intrusion during use. The temporary structure and the required items (e.g. table, chair, etc.) could not be moved during the period during which the employee needs to express breast milk. There must be signage designating the area as a lactation location, and notice should be provided to other employees of the existence and purpose of the temporary lactation location and that it should not be disturbed.
The Commission will develop regulations for this waiver or variance process.
Required Written Policy. All covered employers must implement a written lactation accommodation policy that meets specific requirements:
- States that employees have a legal right to request a lactation accommodation.
- Sets forth a process for requesting a lactation accommodation, including by specifying the means by which a request is submitted, requiring the employer to respond within 5 business days, and requiring the employer and employee to engage in an interactive process to determine break periods and lactation location.
- States that, whenever the employer does not provide lactation breaks or a fully compliant lactation location, or if the employer asserts an authorized variance or waiver, the employer must provide a writing to the employee describing the specific bases for its actions.
- Informs employees that they may file a complaint with the Commission regarding alleged violations of the ordinance.
- Prohibits retaliation for exercising rights under this ordinance.
This policy must be distributed to all employees upon hiring, and again if the policy is modified. In addition, it must be provided to any employee who requests or inquires about pregnancy or parental leave. If the employer has a handbook, the policy must be contained in the handbook.
Recordkeeping Requirements. Employers must retain all requests for lactation accommodations for three years from the date of each request, including:
- The name of the employee.
- The date of the initial request and any update.
- A copy of all correspondence (written or digital) between the employer and employee regarding the request.
- A description of how the request was resolved.
The records must be made available to the Commission upon reasonable notice. If the employer fails to keep the required records or does not permit the Commission access, the employer will be presumed to have violated the title.
Violations. Employees may file complaints of alleged violations with the Commission. The Commission will investigate such complaints using the same process as for complaints of discrimination. The Commission’s conclusions are subject to judicial review.
An employer found to have violated this ordinance will be guilty of a misdemeanor and subject to a fine of not more than $500 for each offense.
What Should Employers Do Now? Employers should develop the required written policy and distribute it to all employees. If you have a handbook, the policy should also be included there. Employers with employees currently breastfeeding must make arrangements to provide breaks and a lactation location in compliance with the ordinance. Those who do not have such employees at the current time may wish to consider what areas may serve as a compliant lactation location in the future.
If you have any questions about this information or would like to speak with a Shawe Rosenthal attorney, please visit our website at www.shawe.com. You may also email firstname.lastname@example.org or call 410-752-1040.