EdLawConnect Blog

Have you ever had a request from a teacher to express milk during the school day?  The percentage of mothers breastfeeding is on the rise in the United States, meaning the likelihood of receiving such a request is likely to increase.  District employees, including teachers, are entitled to break time to express their breast milk pursuant to Labor Code section 1030.  Such breaks, however, may be unpaid if they exceed the number of paid breaks which the teacher may otherwise be entitled to receive under the law or pursuant to the teachers’ collective bargaining agreement.

A district could assert that allowing a particular teacher to take additional unpaid breastfeeding breaks amounts to a “serious disruption,” and therefore, the employee is exempt from the protections of the law under Labor Code section 1032.  However, taking such a position, in most instances, would appear to be contrary to the legislature’s intent.  Moreover, the additional time an employee requests may arguably be reasonable given the logistics of expressing milk.

Labor Code section 1030 provides that:

Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child.  The break time shall, if possible, run concurrently with any break time already provided to the employee.  Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.  (Emphasis added.)

Teachers are exempt from rest and meal period requirements found in Industrial Welfare Commission Order No. 4-2001.  Rather, the Education Code and the collective bargaining agreement dictate meal periods and breaks for teachers.  The Education Code requires that school districts must provide their full-time teachers with a duty-free lunch period “in the manner and at the time prescribed by regulation of the State Board of Education.”  (Ed. Code, § 44813.)  Title 5 of the California Code of Regulations further specifies that “[t]he duty-free lunch period for teachers and other certificated employees required by Education Code Section 44813 shall be not less than 30 minutes.  It shall be allowed as near noon as is reasonably possible.”  (Cal. Code Regs., tit.5, § 5600.)  There is no provision in the Education Code that allows teachers a break in addition to this 30-minute lunch break.

Instructing a teacher that she may only express breast milk during her lunch break, however, would likely not be deemed reasonable under section 1030.  Although the legislature has not addressed this issue, there is a legitimate argument that a lactating teacher needs to express milk at least twice per day.  The La Leche League, a well-respected international organization devoted to the promotion of breastfeeding, opines that breast-feeding mothers require a minimum 20 minutes every three to four hours to express milk in order to maintain a full supply.  With an electric double breast pump, most women could pump within 20 minutes.  Manual and battery-operated pumps could require more time.  Therefore, a breast-feeding mother arguably needs to pump at least twice during an eight-hour work day.  (See, Complying with California’s New Lactation Accommodation Law. Elizabeth L. Graves, 25 L.A. Law. 20 (2003), citing La Leche League guidelines.

An employee’s right to a break to express breast milk though is not absolute.  Labor Code section 1032 states that an employer is not required to allow an employee to take a break to express milk if doing so would cause a “serious disruption” for the employer.  “Serious disruption” has not been defined by the legislature or interpreted by the courts.  However, when the bill was first proposed the language read “unduly disrupt” rather than “serious disruption.”  The language change suggests that the legislature wished for this exception to apply only in rare circumstances, rather than when allowing a break to express breast milk was merely inconvenient.  (See A.B. 1025 Legislative Counsel’s Digest (2001-2002).)  Whether a teacher’s break to express milk is a “serious disruption” will need to be analyzed on a case-by-case basis to determine whether the rare circumstances to justify an exemption are present.

Accordingly, when a teacher wishes to express her breast milk other than during her lunch break, (assuming there are not facts to support that allowing an additional break(s) would amount to a serious disruption), we recommend a District allow the teacher to do so.