The Baltimore City Council was active this spring, enacting new and amended ordinances affecting workplace rights.
Lactation Breaks and Accommodations.
Baltimore City enacted a sweeping ordinance, which took effect in April 2019, requiring employers with two or more full-time equivalent employees to provide accommodation to lactating employees. Employee rights under this ordinance are similar to those under the Fair Labor Standards Act (FLSA), but exceed those requirements in many respects.
This ordinance requires covered employers to provide a reasonable amount of break time to accommodate an employee who desires to express breast milk. It requires lactation break time to run concurrently with any paid breaks provided by the employer, and allows that additional break time needed for expressing breast milk may be unpaid. Unlike the FLSA, there is no limit on the length of time after birth in which breaks must be provided (the FLSA limits such breaks to the first year after birth).
The employer must provide a space in which the employee may express breast milk, other than a bathroom or closet. The ordinance goes further; however, and specifies that the lactation space must be “in close proximity to the employee’s work area,” meaning, no more than 500 feet and two adjacent floors away. This space must be closed from view of co-workers with a locking door. If an employee’s own workspace satisfies these requirements (e.g., private office with a locking door and no one can see in), the employer is not required to provide additional space for that employee.
The lactation space must be safe, clean, and free of toxic or hazardous materials; include a table, shelf, or other surface on which the employee may place her breast pump and other personal items, a place to sit, and at least one electrical outlet. In addition, a sink with hot and cold running water and a refrigerator in which the employee may store breast milk must be provided if such facilities are not already located in close proximity to the employee’s work area.
The lactation space may be a location used for other purposes; however, its use for lactation breaks must take priority over any other functions and uses, and the employer must provide notice to all employees that its primary purpose (for the period in which such space is required for the purpose of expressing breast milk) is that of a lactation space. This means that use of the space by an employee to express breast milk will take priority over any other needs.
An employer in a multi-tenant building who cannot provide lactation space in its own workspace may provide a common lactation space within the building that is available for use by other employers in the same building, so long as it meets the other requirements of the ordinance.
In the event that the requirements of the ordinance would cause an undue hardship, employers may apply to the Community Relations Commission for variances or waivers of their obligations under the ordinance, or for permission to designate a space within a room as a temporary lactation space (subject to requirements under the ordinance).
Employers are required to develop and implement a written lactation accommodation policy, which must be distributed to all employees at the time of hire and to any employee who requests or inquires about pregnancy or parental leave. The policy must be redistributed within 10 calendar days of any modification. If the employer has a handbook or set of policies available to employees, this policy must be included in it.
To be in compliance, the policy must contain all of the following information:
A written statement that employees have the right to request lactation accommodation (breaks and space).
The process for requesting an accommodation which, at a minimum, requires the employer to respond to a request within five business days, and requires the employer and employer to engage in an interactive process to determine break periods and appropriate lactation space.
If the employer does not fully or partly comply with lactation space and break requirements, including if the employer asserts a waiver or variation from requirements, the policy must explain why.
The policy must notify employees of their right to file a complaint with the Baltimore Community Relations Commission.
The policy must prohibit discrimination or retaliation against an employee for exercising rights under the ordinance.
Finally, employers are required to keep records of requests for lactation accommodation, including the name of the employee, the date of the initial request and any subsequent requests, a copy of all written or digital correspondence between employer and employee pertaining to such requests, and a description of how the employer resolved requests for accommodation.
These records must be retained for a period of three years from the date of the request(s). Failure to maintain required records or to allow the Community Relations Commission access to inspect them, will result in a rebuttable presumption that the employer has not complied with the law.
This ordinance does not give employees a private right to sue, but it does carry criminal penalties: Violation is a misdemeanor that can result in a fine of up to $500 per violation.
What Employers in Baltimore City Should Do Now:
Employers who do not currently have designated lactation space should review workspace options in the event need arises, or determine whether to seek a multi-tenant solution, or a waiver or variance from the Community Relations Commission.
Employers should develop, implement, and distribute compliant lactation accommodation policies to all employees.
Employers should develop and implement record keeping requirements.
Employers should train supervisors and managers to respond to requests for lactation accommodation.
Community Relations Law: Now Applies to Employers with Only One Employee.
The Baltimore City Community Relations law prohibits employers from discriminating against individuals on the basis of race, color, religion, national origin, ancestry, sex, age, marital status, physical or mental capability, sexual orientation, or gender identity or expression.
Historically, this law has applied to employers with 15 or more employees. Effective July 2019, the definition of “employer” changed, and it now prohibits employment discrimination by all employers (other than fraternal or religious organizations) with one or more employee, excluding the parents, spouse, or child of the employer.
Employers should be aware that workplace harassment is a form of discrimination. As previously noted in [Response to #MeToo: Changes to Maryland's Human Relations Law | Tydings], the Maryland anti-discrimination law was amended this year to apply its new anti-harassment provisions to employers with only one employee, effective October 1, 2019.
What Employers in Baltimore City Should Do Now:
Employers should develop, implement, and distribute anti-discrimination and anti-harassment policies and procedures consistent with these amended laws, including processes for reporting and investigating complaints.
Employers should train employees about these policies.
Employers should provide additional training to supervisors and managers on the procedure for reporting and responding to complaints of discrimination and harassment.
Melissa Calhoon Jones, chair of the labor and employment group, counsels companies on employment, labor, and immigration issues. For more information about these new amendments and other employment concerns, please contact her.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.