Quick Links for Parents from our Breastfeeding Advocacy 101 Toolkit
1. Pregnancy Disability Leave Law (PDL): Job Protected Leave
In California, people who work for employers with 5 or more employees are entitled under California’s Pregnancy Disability Leave (PDL) Law to take up to 4 months per pregnancy of job protected leave during the period that they are disabled by pregnancy, childbirth or a related condition, including but not limited to lactation. This includes time off for routine prenatal care, time off for pregnancy complications when medically advisable, and time off to recover from childbirth and any associated complications. In California, the PDL has been amended to cover transgender individuals who are pregnant.
Employees who want to take Pregnancy Disability Leave need to give their employers at least 30 days notice when the need for the leave is anticipated and as much notice as possible if the need for leave is unexpected.
An employee may also need to provide a doctor’s note certifying the need for leave. A note does not need to identify the specific condition, but it should say:
- anticipated start and end dates of the leave;
- that the condition is related to pregnancy or childbirth; and
- that the leave is medically advised due to the employee’s inability to perform one or more essential job functions or is unable to do so without undue risk to self, others, or the completion of the pregnancy.
Some workers with pregnancy complications who are unable to work for an extended period of time may exhaust their available pregnancy disability leave before they give birth. To avoid exhausting available leave prior to childbirth, pregnant employees and their healthcare providers should always explore whether a reasonable accommodation would permit the employee to continue working. Detailed resources for employees and healthcare providers relating to pregnancy accommodations can be found at https://www.pregnantatwork.org. Most employees in California who have sufficient remaining leave will be able to take around 6-8 weeks of job protected leave to recover from an uncomplicated vaginal or cesarean section birth.
In California, Pregnancy Disability Leave (PDL) Law also guarantees employees the right to reasonable accommodations of any disability caused by pregnancy, childbirth or a related medical condition. Lactation is specifically defined in the PDL regulations as a “related medical condition” covered by the law. Lactation without complications is not generally considered a disability requiring PDL. An employee who is breastfeeding with or without complications is entitled to reasonable accommodations to enable the person to work safely and effectively while breastfeeding. Employees who experience lactation complications on the other hand are eligible for PDL leave if they are unable to perform one or more essential functions of their jobs and leave is medically advisable.
See Breastfeeding At Work section on the toolkit on page 17.
2. FMLA/CFRA: Job Protected Leave
The Federal Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid, job-protected leave. There are requirements for both the employer and the employee to qualify for FMLA.
An employee can take FMLA for the following reasons:
- to bond after the birth or placement of a child,
- to care for a child, spouse, or parent with a serious health condition, or
- the employee’s own serious health condition.
Baby bonding leave under FMLA must be taken within one year after the child’s birth or placement. Leave to care for a child with a serious health condition does not need to be taken within the first year after birth or placement, but the child must be either a minor or be unable to care for themselves due to a disability.
An employee must meet all three of the following qualifications to be eligible for FMLA leave:
- Have worked for the employer for at least 12 months (not required to be consecutive)
- Have worked at least 1,250 hours for the employer during the 12 month period immediately preceding the leave
- Must work at a location where the employer has 50 or more employees within 75 miles
This means that even if an employee works for a company with 1000 employees but there are only 20 employees at the location where the employee works, that employee is not eligible for FMLA.
An employee who wishes to take FMLA leave to bond with a newborn baby (rather than for their own serious health condition) generally should not have to provide a doctor’s note, but does need to provide advance notice to their employer. Notice should be given to the employer at least 30 days in advance when the need for leave is foreseeable and as soon as possible in all other cases.
The California Family Rights Act (CFRA) is the California version of FMLA and is identical in most respects, including leave length and eligibility requirements. There are however, some key ways in which CFRA provides more protection to California employees than FMLA. Under FMLA, baby bonding leave has to be taken in one, continuous length of time unless the employer agrees to allow the employee to take it intermittently. Under CFRA, unlike under FMLA, an employee can take baby bonding leave intermittently regardless of the employer’s agreement. In general, CFRA leave for baby bonding must be taken in periods of at least two weeks, but an employer can approve requests for shorter increments of CFRA baby bonding leave on up to two occasions. In addition, while FMLA leave runs at the same time as PDL leave, CFRA baby bonding leave is a separate and distinct right from PDL. This means that employees who are eligible for CFRA baby bonding leave can take both up to 12 weeks of baby bonding leave and up to 4 months of leave under PDL for any time that the employee is disabled by pregnancy, childbirth or a related condition.
3. Paid Family Leave: Wage Replacement
In California, Paid Family Leave (PFL) provides up to six weeks of partial pay to employees who take time off from work to bond with a new child entering the family.
To be eligible for California PFL benefits, the parent must have:
- welcomed a new child into the family in the past 12 months,
- paid into State Disability Insurance (noted as “SDI” on pay stubs) in the past 5 to 18 months, and
- not already taken the maximum six weeks of PFL in the past 12 months.
After filing a PFL claim online or by mail, there is a seven day waiting period. The employee must have at least $300 in wages that are subject to SDI contributions during the 12-month base period of the claim. The employee must provide proof of relationship for bonding claims (birth certificate or record, adoption paperwork, etc.). Eligible workers can receive up to 55% of their weekly earnings based on the applicable base period (maximum reimbursement amount is $1,173 per week) for up to six weeks within any 12-month period. The six weeks of Paid Family Leave can be broken up throughout the 12 months and do not have to be taken all at once.
An employee can go to the EDD website for more information and to use a benefits calculator to estimate their weekly paid family leave benefits. The website also has resources for employers. http://www.edd.ca.gov/Disability/Paid_Family_Leave.htm
A new California law was passed that will take effect in January 2018. This law provides greater economic security and equity in California’s Paid Family Leave (PFL) and State Disability Insurance (SDI) programs by raising the current wage replacement rates to 60-70% of the employee’s salary on a sliding scale for both programs, extending PFL from six to eight weeks, and eliminating the current waiting period when applying for PFL benefits.
San Francisco Paid Parental Leave Ordinance
People who are employed in the city of San Francisco are eligible to receive additional compensation through the San Francisco Paid Parental Leave Ordinance (SF PPLO). The SF PPLO requires the employer to provide supplemental compensation that is equal to the difference between the employee’s pay and what the employee receives through the California PFL program for six weeks. The law currently covers all employers in San Francisco who employ at least 35+ employees, and as of January 1, 2018, will cover all companies who have at least 20+ employees.
Employees must meet all of the following requirements to receive SF PPLO:
- The employee has worked for a covered employer for at least 180 days before taking California PFL
- The employee works for the covered employer for at least 8 hours per week
- The employee works for the covered employer for at least 40% of their weekly hours
- The employee is currently receiving CA PFL benefits.
For example, if the employee is receiving 55% of their salary through PFL, but works in the city of San Francisco, the employee will then receive an additional 45% of their income through the SF PPLO program. For more information about this law and how to apply for benefits visit : http://sfgov.org/olse/sites/default/files/FAQ%20August%202017.pdf.
Note: It is important to understand that Paid Family Leave is a wage replacement program and not a job protection program like FMLA, CFRA and PDL. Being approved for paid family leave does not automatically protect the employee’s job, so it is important for the employee to talk to their supervisor or human resources about whether they qualify for FMLA, CFRA and/or PDL even if the employee has received state approval for Paid Family Leave.
4. Using Sick Leave for Family Care: Wage Replacement
California law provides that employees who accrue sick leave are entitled to use up to half of the sick leave they accrue each year to take care of a sick family member or to attend a family member’s preventative care appointment (for example, taking a child to a well baby visit).
“Family members” are broadly defined to include:
- Children (including foster children, legal wards, stepchildren, or children to whom the employee stands in loco parentis, meaning that they provide significant financial or caregiving support). Note: Unlike CFRA and FMLA, the child can be either a minor or an adult.
- Parents (including biological, adoptive, foster and stepparents, legal guardians, and individuals who stood in loco parentis when the employee was a minor child).
- Spouses and registered domestic partners.
Employers may not fire, demote, suspend, or otherwise discriminate against an employee for using or attempting to use up to half of the employee’s annual accrued sick leave to care for a sick family member or to attend a family member’s preventative care appointment.
Note: The City of Los Angeles passed a sick days ordinance that allows all employees who work in the city of Los Angeles to take paid sick leave. Employers must provide sick leave either by:
1) providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period (lump-sum/front-loading); or
2) providing the employee one hour of sick leave per every 30 hours worked (accrual method).
The employee can begin using the sick leave after 90 days of employment. The employee is eligible to take a maximum of 48 accrued hours of paid sick leave in each calendar year, and any unused sick leave rolls over to the following year. The employer can choose to cap the total number of sick hours at 72 or set a higher cap, or set no cap at all.
5. Family-School Partnership Act: Job Protected Leave
Employees who work for employers with more than 25 employees working at the same location are entitled to take up to 40 hours of job-protected leave per year for certain school-related activities. Employees can take a maximum of 8 hours of leave in a single month.
Employees who are eligible for the Family-School Partnership can take job-protected leave for the following reasons:
- finding a school or licensed child care for the employee’s child;
- enrolling a child in a school or licensed child care;
- participating in the activity of a school or licensed childcare; or
- attending to a school or child care related emergency.
“Emergencies” include unexpected closure of a school or child care facility, natural disasters, behavioral and disciplinary problems, or a request by the child care provider that the child be picked up early (e.g. due to illness). According to this law, planned school and child care holidays are not considered emergencies.
An employee must give the employer reasonable notice in order to take time off for school or child care related activities or emergencies.
6. Lactation Accommodation Provisions of the California Labor Code
In California all employers are required to provide reasonable break time to employees who need to express breast milk. The law states that break times should be as close to regularly scheduled paid breaks as possible. If the employee needs more time to express milk, that time would be given unpaid, unless the employer allows the employee to use paid time to express breast milk. The law requires the employer to make reasonable efforts to provide a space that is close to the employee’s regular work space for the employee to express milk in private. The law applies to all employees regardless of the breastfeeding employee’s immigration status and an employer who violates this law will face a civil fine of $100.
For a more detailed discussion of these laws and the ways that they interact with similar Federal laws, see the Breastfeeding At Work section of this Toolkit (page 17).
Break Time and Private Space For Lactating Employees
In California, all employers are required to provide reasonable break time to employees who need to express breast milk. Unlike Federal law, which has restrictions on the age of the child and which employees are covered, California’s laws regarding lactation breaks cover all employers and all employees in the state with no upper age limit of the child. The California Labor Code provides that break time for expressing milk should be concurrent with existing paid breaks when possible. Break time that exceeds the length of the employee’s existing paid breaks must be offered, but the break time does not have to be paid. California law requires the employer to make reasonable efforts to provide a space that is close to the employee’s regular work space for the employee to express milk in private.
California employees who are non-exempt workers are also protected by the Break Time for Nursing Mothers provisions of the Federal Labor Standards Act (FLSA) in addition to the provisions of the California Labor Code. In general, employees who are eligible for overtime pay are non-exempt and eligible for the protections of the FLSA. In cases where an employee is protected under both the federal and state law, the stronger of the two shall prevail. In some cases, that may be state law and in some, federal.
Below is a chart comparing federal and state laws with a summary of legal protections for workers who are eligible for the protections of both the California Labor Code and the FLSA with respect to expressing breast milk. Federal law only applies to non-exempt employees. State law applies to both exempt and non-exempt employees.
If an employee feels that their employer is not providing adequate break time and/or a place to express milk, the employee may file a report/claim with the Department of Labor Standards Enforcement (DLSE) Bureau of Field Enforcement (BOFE) either at the BOFE office that is located nearest to the place of employment. More information about how to file a claim is here: http://www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm.
Any employee who experiences retaliation for asserting their rights to lactation accommodations or for reporting a violation to the DLSE about their employer’s failure to provide lactation accommodations can file a claim with the DLSE and also seek legal advice.
Lactation is considered a condition related to pregnancy and childbirth under the California Pregnancy Disability Leave Law and is, therefore, a basis for reasonable accommodations when accommodations are deemed medically advisable by a person’s healthcare provider. Employees who experience substantial impairment in a major life activity because of a breastfeeding complication may also have protections under the federal Americans with Disabilities Act. Employees in California are already entitled to break time to express milk under the California Labor Code, as explained above.
In most circumstances, advocates in California should not need to rely on the reasonable accommodations of PDL to obtain basic breaks or space for a breastfeeding employee to express breast milk. If, however, an employer offers an employee a space to pump that complies with the bare minimum requirements of the Labor Code, but does not meet the worker’s basic pumping needs, the employee can, with the advice of their healthcare provider, request a different space or changes to the offered space as a reasonable accommodation. Examples might include:
- Access to nearby clean running water for washing hands and pump parts.
- Access to a clean refrigerator or space to store a personal cooler for storage of breastmilk.
- Access to an electrical outlet to plug in an electric breast pump.
- A comfortable chair to sit in while expressing milk.
- A table for the lactation space.
Some workers will need accommodations beyond basic break time and space in order to continue to work and breastfeed due to breastfeeding complications or challenges presented by their particular jobs. Which accommodations will be reasonable for a particular worker is very situation specific and depends on the employee’s medical need, the specifics of the employee’s job, and the needs of the employer.
Some examples of possible reasonable accommodations include:
- A breastfeeding employee who develops a complication like mastitis may need an accommodation such as time off from work to seek medical treatment and recover.
- An employee whose work involves exposure to smoke, heavy metals, radiation or other toxins that could affect breast milk may need reasonable accommodations to reduce exposure. Reasonable accommodations might include use of protective gear (such as gloves, protective clothing or respirators) or, if available, temporary reassignment to a different position. More information about accommodations for breastfeeding workers exposed to potentially hazardous materials is available at: https://www.cdc.gov/niosh/topics/repro/breastfeeding.html
- Rarely, breastfeeding may be incompatible with an employee’s basic job duties. For example, a breastfeeding police officer might be temporarily unable to wear a tight bulletproof vest required to safely perform patrol duties. In this example, the officer might need a reasonable accommodation in the form of a temporary transfer to a light or desk duty position, if the employer offers light duty to other non-breastfeeding workers.
- An employee who is having difficulty expressing milk using a pump is entitled under the Labor Code to express milk each time there is a need to do so, even if they need to pump more frequently than the average breastfeeding worker. Depending on the nature of the employee’s workplace, they may also be able to discuss accommodations that would allow the employee access to their infant so that they can breastfeed rather than pump during some or all of their lactation breaks. (Note: Employers may be particularly willing to consider access-to-infant accommodations if granting them will result in shorter or fewer lactation breaks due to the fact that infants are much more efficient than pumps at removing breast milk.)Examples of this type of accommodation might include:
- Having a caregiver bring the baby to the parent to breastfeed on breaks (rather than pumping).
- Permission to leave work to breastfeed at home or the baby’s day care (if nearby).
- Permission to bring baby to work pursuant to a babies-at-work policy.
- Permission to telework (with another caregiver present to watch the baby when the employee is not breastfeeding).
It is important to remember that workers are not entitled to receive their first choice accommodations, and employers generally do not have to change the employee’s job duties, hours, or productivity requirements unless they would do so for a non-breastfeeding worker. Employers also do not have to offer accommodations that would create undue hardship for their businesses. Reasonable accommodations may need to be negotiated. An employee cannot, however, be punished, fired, or penalized in any way for asking for a lactation accommodation, even if the accommodation is ultimately denied.
Discrimination and Retaliation
Under both Federal and California law, discrimination against employees on the basis of pregnancy, childbirth and related medical conditions is considered a form of sex discrimination and is illegal. The California Fair Employment and Housing Act expressly recognizes discrimination based on lactation as a form of illegal sex discrimination.
State and Federal law also forbid employers from retaliating against employees who oppose sex discrimination, seek reasonable accommodations, or exercise their rights to take job-protected leave.
Employees who believe that they have been demoted or fired because they breastfed or expressed milk at work should seek legal counsel and should contact one of the legal resources listed on the front of this toolkit.
Some contract workers are assigned to work with a company for a particular project or time frame but are still legally considered employees. This includes most “temp” workers. Temporary workers are entitled to the same legal protections as full-time, permanent workers, even if their work is limited in time or scope.
True independent contractors, on the other hand, are not protected by most of the provisions of the ADA, FEHA, FMLA, CFRA, PDL and Labor Code that are discussed in this guide. True independent contractors are self-employed and should have a high degree of control over the time and manner in which they perform their work. Therefore, a lactating worker who is truly an independent contractor should be able to take breaks to nurse or express milk as needed.
If an employer is exerting control over a worker’s working conditions, that worker may be legally an employee and entitled to the protection of state and federal employment law even if the employer refers to the worker as an “independent contractor.”
If a worker has questions about their status as an employee versus an independent contractor and needs help understanding which legal protections for lactation accommodation apply, the lactating person should seek advice from an attorney or from the Center for WorkLife Law free legal hotline at (415) 703-8276.
Workers Who Perform Duties Off-Site
If an employee works at one location and is also sent off-site to perform work, both the primary employer and the off-site employer are responsible for providing lactation accommodations. Additionally, if an employee is sent off-site to perform work for a client, it is the responsibility of both the employer and the client to provide lactation accommodations. For example: if a bookkeeper leaves their primary worksite to go to a client’s office to perform bookkeeping work, both the primary employer and the client are responsible for providing lactation accommodations to the bookkeeper.
Employees who are members of a union may have additional protections beyond what federal and state laws require. Union contracts could include additional benefits such as paid family leave for non full-time employees, extended leave beyond 12 weeks, elimination of the employer’s right to automatically apply vacation or sick days to leave, payment of the employee’s insurance contributions by the employer during leave, and stronger lactation accommodations. Union members should contact their union and ask for a copy of their contract to find out what protections are included. Union members can also participate in contract negotiations to advocate for additional paid family leave and lactation protections.
Union members have a legal right to have a union representative at any interview or meeting that could result in disciplinary action. If a union member feels that they were retaliated against for taking breaks to express breast milk, the union member should contact a union steward or representative. The union may provide guidance about how to file a grievance, may be able to connect the union member to a lawyer, and/or support the union member in taking collective action to resolve the issue.
Advocates should bear in mind that low-wage workers experience barriers to breastfeeding that higher wage workers may not, including low job security, lack of health benefits and sick leave, and inflexible work schedules. Low-wage workers may not be able to afford to take the full amount of unpaid leave to which they are entitled under PDL and CFRA and may feel forced by financial constraints to return to work before they have physically recovered from childbirth or established breastfeeding. California’s Paid Family Leave program is a step in the right direction toward protecting these workers, but six weeks of partial pay may not be enough for some workers to take the leave they need to establish a milk supply and bond with a newborn.
Upon returning to work, low-wage workers are less likely to have access to a dedicated lactation room or to their own private locked office in which to express milk. For a construction worker, waitress, factory employee, or farmworker, private space to express milk may be more difficult to locate than for, say, a corporate attorney. Fortunately, the Department of Health and Human Resources, Office of Women’s Health has fantastic resources for identifying appropriate pumping spaces for nursing employees in a wide variety of occupations and work environments. The Employer Solutions webpage is available online at: https://www.womenshealth.gov/breastfeeding/employer-solutions/index.html
CalWORKs is a public assistance program in California that serves all counties in the state. People who participate in the CalWORKs program are required to complete welfare to work activities. California state law provides that CalWORKs participants are entitled to the same protections as other workers in the state of California such as rest and meal breaks, pregnancy disability and lactation accommodations. Additionally, California law protects CalWORKs participants’ right to breastfeed in any public space including county offices.
Some low-wage workers may also be reluctant to advocate for themselves in fear of negative repercussion and loss of employment. Workers should be reassured that retaliation for breastfeeding or expressing milk is illegal. A worker who experiences retaliation or who is terminated for expressing milk or asserting their legal rights should seek legal advice right away and should consider contacting a worker’s rights advocacy organization as well. See the resources list in the front of the toolkit for more information.
Print Breastfeeding At Work.
Pregnancy Disability Leave is important to allow students to recover from childbirth, establish their milk supply, and bond with their baby. Many students would be surprised to learn that they are legally entitled to leave for medical reasons related to pregnancy and childbirth.
The California Education Code provides some of the most comprehensive and clear student breastfeeding protections in the nation. California students must be provided with a suitable space for expressing milk, storage for their breast pump or milk storage, and break time for expressing milk.
The California Education Code asserts that all pupils have the right to participate fully in the education process, free from discrimination and harassment. It further demands school districts to provide reasonable accommodations for lactating students on a school campus to express breast milk, breastfeed, or address other needs that are related to breastfeeding.
Title IX is part of the Education Amendments of 1972,[ which are amendments to the Civil Rights Act of 1964. Title IX states that any education program or activity that accepts federal funding cannot discriminate against a person based on their sex. Title IX applies to colleges, universities, elementary and secondary schools as well as any other educational program that receives federal funding. Federal Regulations on Title IX make clear that sex discrimination includes discrimination based on parental status, pregnancy, false pregnancy, abortion, miscarriage, childbirth, recovery and related conditions, such as lactation and breastfeeding. This includes ensuring pregnant and breastfeeding students have equal educational opportunities.
Under the federal regulations on Title IX schools must:
- Allow a student to take leave for as long as medically necessary (medical necessity is determined by the student’s physician). The student may be asked to bring in a doctor’s note.
- Ensure that a student’s educational opportunities aren’t diminished due to breastfeeding. To do so would be sex discrimination.
Under this law, K-12 schools must specifically:
- Provide access to a private, secure room with a power source for breastfeeding or to express milk; and a place for storage (refrigerator or cooler bags)
- Allow lactating students to bring a breast pump to school and store expressed milk;
- Provide reasonable break time or time away from the classroom for lactation without incurring academic penalty and allowing the student to make up work; and,
- Process student complaints about lactation accommodations through the Uniform Complaint Process (UCP).
In addition, California law protects the right for a person to breastfeed their child in any place where they are authorized to be present.
If a lactating student believes that their rights under Title IX are being violated, the student can contact the Title IX Coordinator at their educational program. By law, the Title IX Coordinator’s contact information is required to easily accessible on the school’s website. If the student is unable to find the Title IX Coordinator at their school, they can contact the Human Resources Department or the Center for WorkLife Law at http://www.thepregnantscholar.org. The student can also file a complaint with the Department of Education. Instructions can be found here: https://www2.ed.gov/about/offices/list/ocr/docs/howto.html
The California Equity in Education Act specifically guarantees leave for graduate student parents. This law allows for graduate students to take leave for longer than what is medically necessary, and return without penalty.
Under this law institutions must provide their graduate students with:
- One academic year of leave for childbirth (one month for parents who haven’t given birth);
- At least 12 additional months to prepare for and take preliminary and qualifying exams (one month for parents who haven’t given birth);
- At least 12 months towards normative time to degree (one month for parents who haven’t given birth); and,
- If a longer term is medically necessary, extensions will be granted (per Title IX, which protects medically necessary leave).
[FOOTNOTE] Normative time to degree is the number of quarters established for students to complete requirements of their program. Each program may have a different normative time to completion. What these accommodations mean is that a student who is a parent has extra time to complete their degree without penalty.
For more information, visit www.thepregnantscholar.org/leave-and-absences.
Note: While the law does not state any specifications for lactation space, the Department of Education Office of Civil Rights suggests administrators “designate a private room for young mothers to breastfeed, pump milk, or address other needs related to breastfeeding during the school day.”
For more information, see http://www.thepregnantscholar.org/know-your-rights-breastfeeding/
Extracurricular Activities and Athletics
Title IX protects students from discrimination on the basis of pregnancy and related conditions (like lactation/breastfeeding) both outside and inside the classroom. Under this law:
- A student’s participation in a university/college sanctioned club, student group, academic society, etc. cannot be limited because of breastfeeding.
- Pregnant and breastfeeding athletes must be treated as well as any other athlete with a temporary disability.
- The student and their doctor have the final say as to whether the student can compete while pregnant/breastfeeding, not the coach, athletic director, or anyone else.
- The student may only be asked to provide a medical clearance to play if players with other medical conditions are asked to do so as well.
- Scholarships cannot be terminated or altered during the award term based on pregnancy.
- If the school renews athletic awards to injured players who are actively rehabilitating or athletes who stay involved with the team after a career-ending injury, the same must be done in the case of pregnancy. A decision not to renew must be provided in writing by July 1, including the reason for not renewing and the process to appeal.
- If other students who take time off due to an injury/medical condition can apply for a waiver to extend their overall athletic eligibility, athletes who miss time due to pregnancy and related conditions must also be allowed to apply for an extension. The NCAA has allowed these extensions.
Colleges and universities cannot exclude pregnant or lactating students from participating in university-affiliated internships, externships, or other off-site programming. If a student is completing an internship under the guidance of their university, the school and the internship site have responsibility for providing appropriate accommodations. Interns who work for university credit should seek assistance of Title IX if problems arise. Interns who are considered employees of their internship site are entitled to all the same protections as any worker. See Breastfeeding At Work on page 17 for more information.
Merit and need-based scholarships cannot be terminated or altered based on pregnancy or related conditions. Taking off more time than medically necessary may cause a change in student status, scholarships, loans or other financial aid. Students should consult their school’s non-medical leave policy for more information.
A student may register as an “independent student” if the child’s due date is in the award year (July 1 to June 30) and the student will be providing at least half of the support to the child. When filling out the Free Application for Federal Student Aid (FAFSA) form, the student should count the child toward the household size if the due date is within that award year—even if the child has not been born when the student files. Keep a copy of an ultrasound and other medical records in case FAFSA audits the application.
While they are on the clock, students who are employees of their college/university have the same rights as other workers at the institution. See the section Breastfeeding and Work for more information.
For more information:
Pregnant Scholar: http://www.thepregnantscholar.org/financial-aid/
Employees/Teachers/Professors of K-12 schools and colleges/universities
There are specific provisions relating to breastfeeding workers at educational institutions, therefore, employees of educational institutions should review this section in addition to the workplace section, which provides information on laws applicable to all workers. This section includes information specific to those employees, including teachers, administrative staff, student workers, graduate student employees, postdoc employees and others.
See section Breastfeeding At Work at page 17.
Teachers, professors, and other educators should look to California state lactation accommodation law in the California Labor Code. The Federal Break Time for Nursing Mothers provisions do not apply to those workers that have teaching as a primary job duty. This is because the law only protects those workers who are eligible for federal overtime protections. See Breastfeeding At Work page 17 for more details.
Title IX: In addition to the resources that other workers have to assist with problems in the workplace, employees at educational institutions are also protected by Title IX. This law prohibits sex discrimination (including discrimination related to pregnancy and childbirth) in educational settings.
Breastfeeding employees that have difficulty arranging the lactation accommodations they need can contact their institution’s Title IX Coordinator in addition to Human Resources, Union representatives, or any of the resources listed at the front of this toolkit.
Campus Specific Policies
In addition to the above laws, the two major university systems within California also have internal policies relating to breastfeeding workers. Additionally, some of these workers may also have protections for lactation accommodations in their union contracts. Workers should assess both policies to make sure that they are receiving all of the accommodations that they are entitled to.
California State University System
This policy largely mirrors the Federal Break Time for Nursing Mothers Act. The CSU policy encourages supervisors to accommodate those employees who are not covered by that law, but does not require it. However, the policy is limiting in that it does not support California legislation which is stronger in some aspects such as no upper age limit of the child and covering exempt employees in addition to non-exempt employees.
University of California System
The University of California Policy on Lactation Accommodation states that “the university will provide a private, locked place for nursing mothers to express milk, including appropriate temperature and ventilation, table, comfortable chair, and electrical outlet. Employees will be given a reasonable amount of break time; the pay and accounting for the time varies based on employment classification.”
See the full policy.
For more information about colleges and universities, please see BreastfeedLA’s Breastfeeding 101: Los Angeles County Colleges and Universities report.
For more information about K-12 schools, please see BreastfeedLA’s ABC’s of Breastfeeding Report Card.
California law states that the “the mother of a breastfed child” can delay jury duty for up to one year, and can ask for an extension after her infant is one year old. The law also requires that the exemption for breastfeeding be part of the standard jury duty summons so that all lactating persons are aware of this protection.
If a breastfeeding or lactating parent needs lactation accommodations while serving jury duty, it is important they advocate for themselves. Parents should immediately notify the court clerk and request accommodations for pumping when they arrive to serve jury duty. Lactating parents can ask the court clerk where lactating employees go to express breast milk and can ask to use the same place. Lactating parents can remind the court clerk that California law requires them to provide a place for court employees to express breast milk that is not a bathroom.
There is not a specific law that governs lactation accommodations such as pumping breaks during jury duty. If the parent runs into resistance from the court when requesting lactation accommodations, the parent could cite the Unruh Civil Rights Act and the government’s anti-discrimination provision, which require public accommodations and government actors, respectively, to accommodate lactating people.
While serving jury duty, the parent can also request that someone bring their child to the courthouse, because California Civil Code 43.3 protects the right to breastfeed in public. For more information about breastfeeding in public see the section Breastfeeding in Public on page 42.
While not yet passed, the Fairness for Breastfeeding Mothers Act H.R.1174, introduced to the House of Representatives in 2017, would require all buildings that are federally owned or leased to provide a designated, private, clean place for lactating parents to express breast milk. This law has not passed yet, but would provide additional protections to breastfeeding and lactating parents who need to express breast milk during jury duty.
If a breastfeeding parent is negotiating custody with the other parent, it is important to create a custody plan that acknowledges the importance of breastfeeding as well as shared parenting. A custody plan that moves from frequent shorter visits to longer visits as the child gets older can balance the needs of breastfeeding and secure attachment to both parents.
The following resources may be helpful in establishing a fair custody plan. It is important to balance both shared parenting, the benefits to human milk, and the physiology of maintaining milk supply when creating a shared parenting plan.
Los Angeles County Family Court Services has issued guidelines for creating a parenting plan for children under 3. See “Creating a Fair Parenting Plan”.
The “American Academy of Pediatrics Statement on the Use of Human Milk” provides recommendations for breastfeeding that may be helpful.
“Attachment 101 for Attorneys” provides evidence-based information about infant attachment and how it relates to child development.
“Parenting Plans and the Breastfed Child: A Look at How Breastfeeding is Used as a Factor in Parenting Time Allocations for Divorcing Parents in the U.S.” provides guidance for how to balance breastfeeding and custody issues with the other parent.
For children who are older than one year and breast-feeding, citing the World Health Organization’s recommendation to breastfeed for a minimum of two years may be helpful.
Katherine A. Dettwyler, Ph.D has also written a letter in support of extended breastfeeding for use in court cases, which can be found here: www.bhaktibirth.wordpress.com/2010/07/09/breastfeeding-court-letter-by-katherine-a-dettwy-ler-ph-d-anthropology
La Leche League International also has information for family law cases here: www.lalecheleague.org/law/familylaw.html
- If at all possible, come to a shared custody agreement parent-to-parent without involving the courts.
- Parents can use attorneys and mediation to come to a shared custody agreement.
- Consult with an attorney who is experienced in creating shared custody agreements or if the attorney is not aware of the importance of breastfeeding educate the attorney about the importance of breastfeeding.
- Talk to other parents who have faced similar kinds of issues.
- Consult with a lactation professional who can help support continued breastfeeding and help to maintain milk supply during any separations.
People who are incarcerated or detained by immigration while they are breastfeeding or lactating have the right to lactation accommodations during their incarceration or detention. These rights can be difficult to enforce, but there have been a number of cases in which a breastfeeding or lactating individual who was denied lactation accommodations was able to win accommodations through a combination of legal action and community support.
If an individual is incarcerated or in immigration detention and needs lactation accommodations, contact ACLU SoCal right away.
Community Based Alternatives to Incarceration
One option to explore in California is whether there is a community-based alternative to incarceration for those individuals who are pregnant, postpartum, lactating or parenting. The ACLU Report Reproductive Health Behind Bars in California describes numerous health benefits to community-based alternatives to incarceration for both the incarcerated person and their child.
Contact ACLU SoCal for more information about community-based alternatives to incarceration.
Pregnancy While Incarcerated
California law provides protections for lactating individuals who are incarcerated as well as for pregnant people who are incarcerated. The California legislature consider breastfeeding and medical conditions related to breastfeeding as part of the legal definition of the term “sex” under California law, which means discrimination on the basis of breastfeeding or related conditions is sex discrimination and is thus not permissible.
Reproduction Health Services During Incarceration
Incarcerated people have a constitutional right to appropriate medical care. In 2003 the American Public Health Association (APHA) released a list of Standards for Health Services in Correctional Institutions which includes best practices for reproductive health:
1. A “sensitive and dignified” reproductive system examination as part of initial health screening
2. Prenatal screening tests
3. Prenatal health education
4. Special housing and diet when necessary
5. Identification and proper referral of high-risk pregnancies
6. Treatment to prevent perinatal transmission of HIV for HIV-positive women
7. Prohibition of shackling during labor and delivery
8. Training of healthcare staff in jails and prisons for labor and delivery in case of emergency
9. Standing arrangement for deliveries that allow a parent and infant to spend time together after birth
10. Ongoing access to newborns after delivery
11. Access to family planning services, including abortion counseling and services
Shackling of pregnant people poses a serious health risk to both the pregnant person and their pregnancy and is a violation of their human dignity and human rights. This practice is opposed by both the American Medical Association (AMA) and the American College of Obstetrics and Gynecology (ACOG). It is also illegal in the state of California.
California Law prohibits the use of shackles in both pregnant and laboring people. Pregnant people can never be shackled or restrained with leg irons, waist chains, or handcuffs behind the body. Laboring people cannot be shackled during transport to the hospital, during labor, birth, or recovery postpartum. Any restraints used on a pregnant person must be removed during a medical emergency when a medical professional in charge of the person’s care determines that such removal is necessary. In other words, the doctor has the final say, not the deputy.
Jails and prisons in California must provide lactation accommodations to incarcerated people who need them. Most often, this means giving the incarcerated person access to an electric breast pump. It is also best practice for facilities to allow for the expressed breast milk to be picked up by a designated family member from the facility for delivery to the child. For examples of model lactation policies, see attached lactation policies.
If an incarcerated person is not being accommodated or allowed to express breast milk, this could pose a serious medical risk to both the incarcerated person and to the infant. Mastitis, a breast infection, can occur in lactating people who are not able to frequently express breast milk. If the incarcerated person is forced to wean earlier than intended, artificial feeding also poses health risks to the infant. If a facility does not afford necessary lactation accommodations, the facility may be in violation of that person’s constitutional rights by showing “deliberate indifference to [their] serious medical needs” as well as California law, which prohibits “any lack of care whatever which would injure or impair the health of the prisoner, inmate, or person confined.”
There are facilities in San Diego, Santa Fe Springs, Fresno, Bakersfield, and Pomona that allow children younger than 6 to live with their incarcerated parents while they serve out their sentences. There are 16 beds at each facility and an application process. See citation for additional details about this program.
Recommendations if the facility does not provide appropriate lactation accommodations:
- Contact the ACLU and BreastfeedLA if the facility continues to refuse lactation accommodation
- Request an electric breast pump, see model policies for how best to accommodate the lactating person
- If an electric breast pump is unavailable request a manual hand pump
- If the facility refuses to provide an electric or manual pump, the lactating person should be taught hand expression for immediate relief and to help prevent infections, while advocating for more appropriate accommodations.
- The lactating individual should be given a private place to express breast milk.
- Contact the sheriff’s department or facility directly if the individual is not being accommodated.
Policy Recommendations for Jails and Prisons
We recommend that counties adopt the following policy, which includes lactation accommodation, for postpartum individuals. Citations to relevant law and recommendations of leading health organizations are below.
Incarcerated people recovering from labor and childbirth will receive appropriate medical care and accommodations. This care shall include:
- Assessing inmates who delivers a child vaginally to determine appropriate housing, and to begin their postpartum care, and admitting an individual who delivers via C-section to further in-patient care.
- Supervising obstetricians or RN/NPs should have discretion to determine when, postpartum, an inmate is cleared for housing in the general population.
- A postpartum examination six weeks after birth, wherein the supervising obstetrician or RN/NP will determine whether the inmate will be cleared, or if further medical restrictions are warranted.
- A screening for depression or mental stress during pregnancy and for postpartum depression after delivery, and treatment as needed.
- A bottom bunk during the postpartum period.
- A recovery period of at least 4-6 weeks after delivery before the inmate is required to resume normal activity.
- Access to a breast pump to express milk to relieve pain or maintain milk supply.
- Parents will be allowed time to connect with their infants after delivery, both in the hospital and later visitation.
- Inmates will be educated about the benefits of breastfeeding and the facility’s policy is to encourage and support breastfeeding.
- Lactating inmates will be allowed to express milk to maintain milk supply and also for delivery to the infant.
- The facility will make accommodations for storing and transporting breast milk.
For more information please see the ACLU’s recommendations in the report “Reproductive Health Care in California Jails – A Tool to Assess and Reform Policies and Practices”.
Pregnancy While in Immigration Detention
Immigration and Customs Enforcement (ICE) has published standards for medical care for women who are at ICE facilities including Service Processing Centers (SPCs), Contract Detention Facilities (CDFs) and “state or local government facilities used by ERO through Intergovernmental Service Agreements (IGSAs) to hold detainees for more than 72 hours.”
These standards include prohibiting shackling of pregnant women “absent truly extraordinary circumstances” including during transport to and from the hospital, labor and birth, both in the facility and in the hospital.
Lactation While in Immigration Detention
ICE standards state that women who are in custody should have access to lactation services. ICE has also issued a memorandum “to exercise discretion during arrests by releasing nursing mothers from detention unless they presented a national security or public safety risk.” This memorandum was issued after public outcry following the case of a woman detained in Ohio who was nursing her 9-month-old baby.
The American Bar Association (ABA) recommends that ICE avoid detaining nursing mothers and that the unique needs of nursing mothers and “other vulnerable populations” be met while in immigration detention.
Recommendations if the facility does not provide appropriate lactation accommodations:
- Consult with an immigration attorney
- Contact the ACLU and BreastfeedLA if the facility continues to refuse lactation accommodation
- Request an electric breast pump, contact the ACLU for model policies for how best to accommodate the lactating person
- If an electric breast pump is unavailable request a manual hand pump
- If the facility refuses to provide an electric or manual pump, the lactating person should be taught hand expression for immediate relief and to help prevent infections, while advocating for more appropriate accommodations.
- The lactating individual should be given a private place to express breast milk.
Taking Time Off From Work
Adoptive and foster parents qualify under several California and Federal laws to take time off from work to care for a child. Adoptive parents qualify for FMLA and CFRA job-protected leave after the placement or adoption of a child. FMLA can also be used prior to placement if the parent needs to “attend counseling sessions, appear in court, consult with their attorney or the birth parent’s representative, submit to a physical examination, or travel to another country to complete an adoption before the actual date of placement.” California’s paid family leave program provides wage replacement for adoptive and foster parents while they take FMLA/CFRA leave. Adoptive and foster parents are also able to use sick leave to take time off from work to care for their children. The Family-School Partnership Act allows adoptive and foster parents to take time off from work to attend school events.
The birth parent would be able to take Pregnancy Disability leave in order to recover from childbirth. Pregnancy disability leave provides time off from work to a person who is physically disabled by pregnancy, childbirth or related conditions.
See Six Key Laws for Working Parents in California on page 12 for more information.
Breastfeeding and Lactation Rights
An adoptive parent may choose to induce lactation in order to breastfeed an adopted child. An adoptive parent should work with their healthcare provider and a lactation professional when inducing lactation. Inducing lactation can mean either that a parent who previously breastfed stimulates lactation in order to produce breast milk again, or that a parent who has not breastfed stimulates lactation for the first time. The American Academy of Family Physicians position statement on human milk supports inducing lactation.
If the birth parent chooses to express breast milk for the infant after the infant is placed for adoption, then the birth parent is entitled to lactation accommodations and protections.
At this time there are no clear legal guidelines for a foster parent who wants to breastfeed.The La Leche League blog featured one foster parent’s experience in December of 2016.
Work and School
The same laws that protect the expression of breastmilk at work and school should also apply to adoptive parents who choose to induce lactation for their child and to birth parents who express milk after placing their child for adoption. If the parent is facing discrimination for breastfeeding or lactation or the school, employer, or employee would like additional information, they should contact one of the legal resources listed in this toolkit.
Print Adoptive and Foster Parents.
When parents welcome a new child into the family by working with a surrogate, both the surrogate and the intended parents have protections under California law. A surrogate is a person who agrees to carry and birth a child for another person or family. The intended parents will be the legal parents of the child when they are born. The state of California has a specific law that regulates surrogacy agreements and establishing of parental rights for the intended parents. For more information about parental rights, please consult with an attorney who is familiar with surrogacy agreements.
Taking Time off from Work
Pregnancy disability leave provides time off from work to a person who is physically disabled by pregnancy, child-birth or related conditions. This means that a surrogate would be able to take time off from work to recover from childbirth under pregnancy disability leave.
See Six Key Laws for Working Parents in California page 12 for more information about pregnancy disability leave.
Once the intended parents establish legal parental rights for their child, the intended parents qualify to take time off from work to care for a child under a number of laws. FMLA/CFRA74 provides job-protected leave so that parents can take job-protected leave to care for their child after their child is born. The California Paid Family Leave program provides wage replacement for parents who need to take FMLA/CFRA leave. Parents are also able to take sick leave to care for a child. The Family School Partnership Act provides that parents can take job-protected leave from work in order to attend school events.
See Six Key Laws for Working Parents in California on page 12 for more information about these laws.
Breastfeeding and Lactation
In a surrogacy situation, the intended parent may choose to induce lactation and breastfeed their baby or the surrogate may choose to pump breast milk for the baby. An intended parent should work with their healthcare provider and a lactation professional when inducing lactation. Inducing lactation can mean either that a parent who previously breastfed stimulates lactation in order to produce breast milk again, or that a parent who has not breastfed stimulates lactation for the first time. The American Academy of Family Physicians position statement on human milk supports inducing lactation.
Work and School
The same laws that protect the expression of breastmilk at work, should also apply to intended parents who choose to induce lactation for their child and to surrogates who express milk after the birth of the child. If the parent or surrogate is facing discrimination for breastfeeding or lactation or the school, employer, or employee would like additional information, they should contact one of the legal resources listed in this toolkit.
Effective January 1, 2016, birth certificates in California no longer identify a mother and father but use parent with checkboxes after each parent’s name signifying “mother”, “father,” or “parent”. Parents whose children were born before January 1, 2016 can retroactively change their child’s birth certificate.
In California when a legally married couple has a child they are automatically presumed to be the child’s legal parents regardless of the parents’ gender identity. In California, same-sex parents who have a civil union, or comprehensive domestic partnership are both automatically presumed to be the parents. However, the National Center for Lesbian Rights encourages non-biological and non-adoptive parents get a legal adoption or parentage judgement even if both parents are already named on the child’s birth certificate. This provides an additional layer of protection for the parent(s) and child(ren), particularly if they are traveling to other states that might not recognize parentage based on the couple’s relationship status at the time of the birth.
Taking Time off from Work
LGBTQAI+ parents in California have the right to take time off from work to care for a child under several laws. Pregnancy Disability Leave (PDL) applies to a parent who needs time off from work to recover from physical disability related to pregnancy, childbearing or related conditions. Thus any parent who is pregnant or recovering from childbirth, regardless of gender identity, should qualify for time off from work under pregnancy disability leave law. In fact, California PDL has been amended to specifically protect transgender people.
Both parents who have given birth and parents who have not given birth qualify for FMLA/CFRA job-protected leave to care for a child. The California Paid Family Leave program also covers parents regardless of gender identity. LGBTQAI+ parents are also able to use sick leave to care for a child, and qualify for job-protected time off from work to attend school events under the Family-School Partnership Act.
See Six Key Laws for Working Parents in California page 12 for more information.
Breastfeeding and Lactation
LGBTQAI+ parents have protections with regards to breastfeeding and lactation. LGBTQAI+ parents may breastfeed or chestfeed their child after giving birth or may induce lactation in order to breastfeed or chestfeed*. The same laws that protect biological breastfeeding mothers who identify as women apply to induced lactation in non-biological mothers, and breast or chestfeeding by parents who do not identify as women.
A parent should work with their healthcare provider and a lactation professional when inducing lactation. Inducing lactation can mean either that a parent who previously breastfed stimulates lactation in order to produce breast milk again, or that a parent who has not breastfed stimulates lactation for the first time. The American Academy of Family Physicians position statement on human milk supports inducing lactation.
Work and School
In California, all employers must provide breastfeeding workers, regardless of gender, with break time and reasonable accommodations. The same laws that protect the expression of breastmilk at work and school, also apply to LGBTQAI+ parents who choose to induce lactation for their child or to LGBTQAI+ parents who do not identify as women. If an LGBTQAI+ parent faces discrimination for breastfeeding, chestfeeding or lactation, they should contact one of the legal resources listed in this toolkit.
In California, breastfeeding parents may breastfeed their children in any location public or private where they are both authorized to be present, except the private home or residence of another. Although the California law refers to “nursing mothers”, this law has been interpreted to protect breastfeeding people who do not identify as mothers. See Breastfeeding in Public page 42 for more information and for who to contact if facing discrimination for breastfeeding in public.
Breastfeeding without Birthing is a great resource for breastfeeding and chestfeeding as well as for finding lactation consultants who are experienced in assisting parents who would like to induce lactation. www.breastfeedingwithoutbirthing.com
Trevor MacDonald has become an international advocate and educator about transgender individuals and breastfeeding. His blog has additional information and resources at: http://www.milkjunkies.net.
Print LGBTQAI+ Families.
Breastfeeding and lactating people have rights while traveling. Forty-nine states, the District of Columbia, and the Virgin Islands have public accommodation for breastfeeding laws that protect a parent’s right to breastfeed in any public or private location. The only state that does not have a specific public breastfeeding law is Idaho. Under the Right to Breastfeed Act, breastfeeding women are allowed to breastfeed on any federal property, including National Parks. Therefore, individuals should be able to breastfeed in most airports, train stations, bus stations, and rest locations throughout the nation without incident.
A breastfeeding parent has different needs when traveling with their baby than when they travel without their baby. When pumping, the parent needs a private, clean, space to express breast milk. A parent may breastfeed their child in any location, public or private, where they are otherwise authorized to be present. See the section Breastfeeding in Public for more details.
In California, airports with more than one million travelers per year must provide a room or other location at each airport terminal for travelers to express breast milk. The area must be located behind the airport security screening area, must be private, have a chair and an electrical outlet. The space provided may not be a public restroom.
Travelers can bring breast milk through security in their carry on luggage. Unlike other liquids, breast milk is allowed to be in containers larger than 3.4 ounces or 100 milliliters and does not need to fit in a quart sized bag. A person does not need to be traveling with their child to bring breast milk.
When traveling, it is best for the lactating person to inform the TSA officer at the beginning of the screening process when carrying breast milk in excess of 3.4 ounces in their carry-on bag. Any breast milk should be removed from the carry-on bag to be screened separately.
It is important for travelers to know that the TSA has alternate screening procedures for breast milk and that breast milk does not have to be X-rayed or opened in order to be screened. Travelers should notify the TSA officer if they would prefer for their breast milk not to be x-rayed.
According to the TSA website “TSA officers may need to test liquids for explosives or concealed prohibited items. Officers may ask to open the container and/or have a small quantity of the liquid transferred to a separate empty container or dispose of a small quantity, if feasible. The TSA officer should be informed if the person does not want the breast milk to be X-rayed or opened. Additional steps will be taken to clear the liquid and you or the traveling guardian will undergo additional screening procedures, to include a pat-down and screening of other carry-on property.”
If the traveler is bringing ice packs to keep breast milk cold and the ice packs are partially frozen, the ice packs are subject to the same screening process described above. Travelers can also bring breast pumps either in their carry on or in their checked luggage.
Expressing Milk While on an Airplane
Although it is best to pump before boarding to avoid pumping on the plane, sometimes it can’t be avoided. On longer or international flights, a traveler may need to pump in their seat. Ask the flight attendants if they can suggest a pumping location. The flight attendants can also help to keep people from disturbing the passenger while in pumping in their seat.
Storage and Transport of Breast Milk
Travelers can request a refrigerator when booking a hotel. Many hotels will deliver a refrigerator to the room for medical reasons, including storage of breast milk if requested. If opting to ship breast milk home, some companies provide reimbursement for shipping expenses when traveling for business. If traveling for work, check with the human resources department for their policies.
Recommendations and Resources:
- Print out and carry a copy of the TSA’s official guidelines on traveling with breast milk.
- If a traveler feels that the TSA is restricting the amount of breast milk that they are able to carry onto the plane, they should ask for a supervisor or manager or contact TSA directly.
TSA Contact Center: 1-866-289-9673 or https://www.tsa.gov/contact/customer-service
TSA Cares is a helpline that breastfeeding and lactating travelers can call 72 hours before traveling to ask questions about the screening process or to ask for additional assistance during the security checkpoint. The helpline also provides information about screening policies and procedures as well as what to expect at the security checkpoint. While at the airport, travelers can also ask a TSA agent for special support or assistance.
TSA Cares: (855) 787-2227
Federal Relay: 711
Weekdays: 8 a.m. to 11 p.m. ET
Weekends/Holidays: 9 a.m. to 8 p.m. ET
California law states that “a mother may breastfeed her child in any location, public or private, except the private home or residence of another, where the mother and the child are otherwise authorized to be present.” The law does not require the use of a privacy cover while breastfeeding. While this law refers to “nursing mothers”, the law has generally been interpreted as applying to any breastfeeding person, regardless of whether or not the person identifies as a mother.
Recommendations for how to respond if refused service for breastfeeding or harassed for breastfeeding in public:
- Take a deep breath.
- Ask “Are you refusing me service because I am breastfeeding?” or “Are you telling me I must leave because I am breastfeeding?”
- Give the other person a chance to respond.
- Immediately document everything that was said.
- If you are asked to leave or refused service, advise them that under California Law, you have the right to breastfeed in public.
- Advise the other party that California State Law protects the right to breastfeed in public.
- Let them know that by refusing service and/or being ask to leave their business, you will be filing a sex discrimination complaint under the Unruh Civil Rights Act.
If the other party continues to refuse to follow California State Law, see the toolkit section Advocating for Yourself page 47 for ideas about other strategies.
Print Breastfeeding in Public.
Print Lactancia Materna en Público.
All patients have protected rights to receive adequate and appropriate medical care, including during pregnancy, birth, the postpartum period and lactation. The level of personal care and professional support that a breastfeeding parent receives has enormous influence on whether they are able to meet their breastfeeding goals. It is important that care is centered on the patient’s goals and patients are offered comprehensive information and support to be able to make autonomous and informed decisions.
Although all patients have the same rights, there are stark disparities in healthcare outcomes among marginalized communities that result from the way the healthcare system is structured. Marginalized communities include, but are not limited to, individuals with language barriers, people of color, immigrants, LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex, asexual, and others) people, gender non-conforming persons, religious minorities, disabled persons, people with mental health issues, low income people, unemployed individuals, people with unstable housing, and young parents.
Disparities in breastfeeding rates exist across the Country, including California. To see California’s In Hospital Breastfeeding Rates broken down by hospital, race, and ethnicity, visit https://www.cdph.ca.gov/Programs/CFH/DMCAH/Pages/Topics/Breastfeeding.aspx.
These disparities result from policies and procedures within the healthcare system and our overall society, such as a California’s Paid Family Leave program, which currently only applies to workers who work for companies with at least 50 employees. Our society does not distribute resources equitably, which affects breastfeeding rates. For example, there can be high out of pocket costs to hire a lactation consultant, which many people cannot afford. Individual care providers also have implicit biases that affect patient care, such as a healthcare provider assuming a parent already knows how to breastfeed because they have three older children, or assuming that a person of a particular background will not breastfeed. For more information about breastfeeding disparities see the Center for Social Inclusion’s Report Removing Barriers to Breastfeeding.
These issues require broad policy reform to affect change. For instance, if there was a national paid family leave program that covered everyone, then all parents would be able to take paid family leave. Similarly, if everyone had affordable health insurance that properly covered lactation support, then more people would be able to see a lactation consultant after hospital discharge. Healthcare providers and patients should advocate for broad policy changes to address breastfeeding disparities.
On an individual level, providers have a responsibility to promote shared decision making and patients have the right to participate in making decisions about their medical care. When healthcare providers strive to provide equitable care and promote shared medical decision making, health care disparities improve. When patients know their rights, have the information to adequately advocate for their care, and receive the support they need, they are more likely to meet their breastfeeding goals.
Patient Rights When Receiving Medical Care
1. Right to Informed Consent
The California Bill of Patient Rights includes a statement describing a patient’s right to informed consent. Informed consent is a process of communication between the patient and the healthcare provider. Informed consent allows a patient to make a voluntary decision about accepting or declining medical care after being properly advised of the relevant medical facts and risks involved. The healthcare provider should give the patient evidence-based information in a non-coercive manner. A patient can give informed consent verbally or by signing a form.
The key information necessary for a patient to give true informed consent about a procedure includes the risks, benefits, alternatives of care and anticipated results. Except in emergency situations, this information should include “a description of the procedure or treatment, medically significant risks involved, alternative courses of treatment or no treatment, and the risks involved in each, and the name of the person who will carry out the procedure or treatment.” The patient has the right to ask questions to obtain as much information about any proposed treatment or procedure as they would like.
Health care providers must give information to the patient in language that the patient can understand. The right to informed consent also includes access to an in-person or electronic translator to ensure that the patient can gather all the information they need to make an informed consent or refusal.
One way that patients can participate in medical decisions about their care is to ask questions by using the acronym BRAINS. Intuition is not a legal requirement of informed consent, but is often a part of a patient’s decision.
BENEFITS: What are the benefits of the proposed treatment?
RISKS: What are the risks of the proposed treatment? How common are the risks?
ALTERNATIVES: Are there any alternative treatments that could address this problem? What are the benefits and risks of each alternative treatment?
INTUITION: What does the patient’s intuition say about the proposed treatment? Everyone has different experiences that inform their decisions.
NOTHING: What would happen if the patient refused the proposed treatment? What would happen if the patient waited (an hour, a day, a week) before accepting the proposed treatment?
SECOND OPINION/SHORT BREAK: The patient can also ask for a second opinion or to take a short break to decide.
Parents can use BRAINS for their own care or to ask questions about their infant’s care. As an example, many patients have questions about how medications may affect their breastfed infant. If a doctor has prescribed a particular medication for a lactating parent, they can identify the medication’s risks using Lactmed — an online resource that includes the most current evidence about how medications affect a person’s breast milk and milk supply — before consenting to treatment.
2. Right to refuse treatment while pregnant
The American College of Obstetricians and Gynecologists (ACOG) states that “forced compliances” — or, going against a patient’s wishes and forcing a patient to undergo a treatment after it was refused — “raises profoundly important issues about patient rights, respect for autonomy, violations of bodily integrity and power differentials and gender inequality”. Exercised informed consent includes the right to delay standard procedures or recommended treatments, or to decline them altogether.
According to the ACOG policy statement on informed refusal during pregnancy, a patient is assumed to be able to make their own medical decisions, unless the patient is formally determined to be unable to make their own medical decisions. Typically it requires a physician evaluation to determine that someone is incapable of making medical decisions for themselves. The policy also states that pregnant patients have the right to refuse treatment, even if that treatment is needed to maintain life. The patient also has the right “to leave the hospital even against the advice of members of the medical staff”.
3. Right to a second opinion
According to California Patient Rights, in addition to the right to more information, a person has the right to a timely second opinion regarding a diagnosis and treatment plan.
4. Right to interpretation
Shared decision making and informed consent are only possible when a patient has an adequate understanding of the recommended treatment and procedures. According to the ACOG statement on informed consent, physicians can and should help find ways to facilitate communication. This includes access to an in-person and/or electronic translator, awareness of medical illiteracy, handouts in various languages, a visible patient bill of rights, and the presence of the patient’s advocate, family, or appointed person.
5. Advocating for breastfeeding in emergencies, natural disasters, and emergency preparedness
ACOG advocates that “emergency plans specifically address the needs of women, infants, and children during disasters”.
American Academy of Pediatrics provides guidance for healthcare professionals to advocate for breastfeeding during disasters and emergencies.
La Leche League promotes lactation and relactation during disasters and emergencies with these guidelines .
Advocating for Best Practices in the First Days of Life
The following are evidence-based best practices for breastfeeding initiation in the first days of life. Hospitals in California will be required to implement many of these steps by 2025. Parents can advocate for these practices if their hospital does not already have these policies in place.
- Uninterrupted Skin-to-Skin: Direct skin contact between mother and baby immediately following the birth and until at least the first breastfeed.
- Delayed Newborn Procedures: nonurgent newborn shots and tests be delayed for up to two hours until after breastfeeding has been initiated.
- Delayed First Bath: Delaying baby’s first bath for at least several hours has been shown to support breastfeeding initiation.
- Rooming In: The baby stays in the room with the nursing parent and does not leave for tests, feedings, or to sleep in the nursery. The goal is that infants spend no less than 23 out of 24 hours rooming in.
- “Give no pacifiers or artificial nipples to breastfeeding infants” until breast milk has been established about 3-4 weeks post delivery.
- “Give infants no food or drink other than breast-milk unless medically indicated.”
- Breastfeeding whenever the infant shows feeding cues, or on-demand.
Recommendations for Healthcare Providers
Healthcare providers play a crucial role in breastfeeding support. Parents expect their healthcare providers to have the knowledge and clinical skills to assist them with common breastfeeding concerns. A lack of breastfeeding knowledge among healthcare providers can mean that patients receive inappropriate or conflicting information, which contributes to the difficulties parents face when learning to breastfeed and to early weaning.
The Centers for Disease Control have issued guidelines about how different health care providers can support breastfeeding. ACOG has also issued practice guidelines for healthcare providers to best support breastfeeding initiation and duration in underserved communities. Healthcare providers can look to the Baby-Friendly Hospital Initiative and the Nine Steps to Breastfeeding Friendly Guidelines for Community Health Centers and Outpatient Care Settings for best practices that support breastfeeding.
Healthcare providers can support breastfeeding by:
- Providing coordinated, culturally and linguistically appropriate care “that involves practitioners, family members, and child care providers, obstetrician–gynecologists that can help those underserved overcome obstacles and obtain the benefits of breastfeeding for themselves and their infants.”
- Increasing the interprofessional collaboration between obstetrician/gynecologists, pediatricians, Internationally Board Certified Lactation Consultants, and nurses.
- Providing an environment in the hospital, clinic, or office that promotes, advocates, and supports breastfeeding (close follow-up in the early postpartum period (24-48h) and good communication between the OBGYN, the nurses and the pediatricians).
- Emphasizing “the benefits of breastfeeding, as well as patient education, counseling, and support strategies […]during training of residents in obstetrics and gynecology, family medicine, and pediatrics.”
- Promoting ongoing education “for all reproductive health care providers and hospital staff involved in childbirth.”
- Providing resources so breastfeeding and lactating people can know where to seek assistance after discharge from the hospital.
The California Insurance Commissioner should adopt the USBC Model Payer Policy, which describes best practices for insurers to provide breastfeeding support, supplies and counseling.
Advocates should press the California Insurance Commissioner to conduct an audit of all California health plans to determine if their breastfeeding coverage is adequate. If health insurance plans are found to be insufficient, the best practices outlined in the USBC model policy should be implemented.
All counties in California should require that MediCal managed care plans clearly define “breastfeeding support, supplies and counseling coverage.” MediCal managed care plans should also provide a complete list of lactation providers and durable medical equipment providers. Monterey County’s policy can serve as a model for other counties throughout the State.
Print Rights in Medical Care.
All breastfeeding and lactating individuals have rights. If a person believes that their rights have been violated, they can do something about it. They are not alone. Community-based organizations like BreastfeedLA, government agencies, legal advocates and others are here to support them.
While all people have rights, some individuals may face additional barriers in exercising their parental or breastfeeding rights due to discrimination based on race, ethnicity, sexual orientation, gender identity, employment status, immigration status, or language barriers. Retaliating against a person for asserting their breastfeeding or lactation rights is illegal. Community and legal support may be beneficial to determine effective strategies to minimize retaliation or discrimination and how to proceed should this occur.
Actions to take to advocate for yourself or others:
Write: Write down everything about the incident as soon as possible after it has happened. Where did it occur? Who was involved? What was said or done?
Save: Save all relevant documentation (e.g. paystubs, copies of HR manuals, calendar or personal journal entries, photos) or emails (or other electronic messages, like texts or instant messenger).
Contact: Contact the local Breastfeeding Coalition and ask for support on which law may apply. To find a listing of local coalitions, go to http://californiabreastfeeding.org or reach out to BreastfeedLA, who can connect to other advocates and legal support.
Print Advocating for Yourself.
Print Abogar por Sí Mismo.