BILL ANALYSIS Ó
AB 302
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
AB 302
(Cristina Garcia) - As Amended March 26, 2015
SUBJECT: Pupil services: lactation accommodations
SUMMARY: Requires that school districts provide reasonable
accommodations to breastfeeding students on high school
campuses. Specifically, this bill:
1)Requires school districts to provide reasonable accommodations
to lactating high school students to express breastmilk,
breastfeed, or other address other needs related to
breastfeeding.
2)Defines reasonable accommodations as:
a) Access to a private and secure room, other than a
restroom, to express milk or breastfeed a child.
b) Permission to bring a breast pump and related supplies
onto a high school campus
c) Access to a power source to run a breast pump
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d) Access to a place to store breastmilk safely
1)Requires that a lactating student be provided a reasonable
amount of time to express milk or breastfeed.
2)States that these requirements apply to schools where there is
at least one lactating student.
EXISTING LAW:
1)Requires (Labor Code § 1030 et seq.) employers to provide
break time and a location which is not a bathroom stall in
which employees can express milk.
2)Federal law, known as the Patient Protection and Affordable
Care Act (42 U.S.C. § 18001 et seq., 2010) requires that
employees covered by the Fair Labor Standards Act be given
break time and a place which is not a bathroom to express
breastmilk.
3)Prohibits (Government Code § 12926) discriminatory practices
in employment or housing accommodations on the basis of sex.
For purposes of the act, the term sex also includes
breastfeeding or medical conditions related to breastfeeding.
4)Requires, in federal (34 C.F.R. § 106.40(b)(1) and state law
(Education Code Section 200) that pregnant students and those
recovering from childbirth-related conditions must be provided
with the same accommodations and support services available to
other students with temporary medical conditions.
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FISCAL EFFECT: Legislative Counsel has keyed this bill as a
state mandated local program.
COMMENTS:
Need for the bill: The author's office states, "Under federal
Title IX and the California Sex Equity in Education Act,
pregnant students and those recovering from childbirth-related
conditions must be provided with the same accommodations and
support services available to other students with temporary
medical conditions.
Lactation is indisputably related to pregnancy and childbirth,
and students who are nursing may need to express milk or
breastfeed as frequently as every two to three hours. The
California School Boards Association has a model policy for
parenting students that includes optional lactation language,
but few schools adopt it. Current law specifies how lactation
accommodations are to be provided to school staff, but there is
nothing in the Education Code that specifies how schools should
meet parenting students' rights to lactation accommodations.
Pregnant and parenting students should not be forced to make
decisions about where to attend school or whether to breastfeed
their child solely based on whether they can access appropriate
lactation accommodations at school. California law should be
clear that accommodations for lactating students include access
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to a private, secure room to breastfeed or express milk.
Assembly Bill 302 would specify that high schools with one or
more lactating students shall provide these students with access
to a private, secure room to deal with any needs associated with
breastfeeding or expressing milk. AB 302 would also require
schools to allow lactating students to bring a breast pump to
school and store expressed milk, and it would require schools to
provide these students with reasonable break time or time away
from the classroom to accommodate their lactation schedule."
Lack of accommodations may affect educational choices. In a
2015 report titled, "Breaking Down Barriers for California's
Pregnant and Parenting Students," the American Civil Liberties
Union found:
Failure to provide adequate lactation accommodations at one
school site may result in a student's decision to forego
breastfeeding altogether or enroll in a school site
exclusively based on the ability to pump or breastfeed during
school hours. During focus group discussions, some pregnant
and parenting students shared that school administrators
discouraged them from expressing breast milk at school. Two
out of the nine pregnant and parenting students interviewed
said that their decision to leave regular school was based
entirely on their inability to breastfeed or pump milk.
State and federal law extend rights to employees but not to
students. Both state and federal law require most employers to
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provide reasonable accommodations to lactating employees,
including break time and the provision of private space in which
to express milk. These rights are not explicitly extended to
students, though Title IX requirements, given recent changes in
state housing and employment non-discrimination law which define
"related conditions" of pregnancy to include lactation, could be
understood to include lactation accommodations for students.
Schools already required to provide space for employees. The
requirements of this bill largely mirror those required under
state and federal law for employees. As a result, schools may
not have to designate a space for students beyond what they have
already established for employees.
Argument in opposition. The Association of California School
Administrators argues that, while there is a need to provide
accommodations for lactating students, the approach in this bill
is too restrictive, and that decisions on how best to implement
"reasonable accommodations" should be left to local discretion.
The Association opposes this bill unless amended to remove the
provisions which specify the kind of space provided to students
for expressing milk.
Extend this right to all lactating students, regardless of
placement. Staff understands that it is the author's intent
that this bill apply to all lactating students, regardless of
educational placement. The bill as currently drafted would
apply only to students attending a high school operated by a
school district. Staff recommends that the bill be amended to
instead specify that it applies to "a school operated by a
school district or a county office of education, the State
Special Schools for the Blind and the Deaf, and a charter
school."
Prohibit academic penalties and allow students to make up work.
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In order to prevent students from being penalized for the time
they take to express milk, staff recommends that the bill be
amended to 1) prohibit students from being penalized
academically for using time during the school day to express
milk, and 2) require that students who have missed instruction
due to their need to express milk be given the opportunity to
make up any work missed.
Create complaint mechanism with expedited time frame. Under the
California Labor Code, violations of employee rights to
lactation accommodations are subject to fines imposed by the
Labor Commissioner. Under the federal Fair Labor Standards Act,
mothers can submit complaints about non-compliance with the
Department of Labor.
No complaint or enforcement mechanism is proposed in this bill
for allegations of non-compliance with a student's right to
express milk. An existing process administered by local
educational agencies, called the Uniform Complaint Procedures
(UCP) could be an appropriate means of addressing such
complaints, but the timelines (60 days for an LEA to respond to
a complaint) are not suitable for a situation in which a student
might suffer medically within a few hours and might experience a
reduced ability to provide sufficient milk for her child within
a matter of days. Staff recommends that the bill be amended to
make complaints regarding non-compliance with this law subject
to the UCP, with expedited timeframes as follows: LEAs would be
required, within five school days of receiving a complaint, to
conduct a complete investigation and prepare a written decision.
If these decisions were to be appealed to the California
Department of Education, the Department would have 30 days to
issue a written decision. These time frames are consistent with
another bill approved by this Committee on March 25th regarding
the educational rights of foster youth (AB 379, Gordon).
REGISTERED SUPPORT / OPPOSITION:
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Support
American Civil Liberties Union (sponsor)
California Latinas for Reproductive Justice (sponsor)
ACCESS Women's Health Justice
ACT for Women and Girls
American Congress of Obstetricians and Gynecologists, District
IX
Black Women for Wellness
BreastfeedLA
California Association for Health, Physical Education,
Recreation, and Dance
California Black Health Network
California Immigrant Policy Center
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California Nurse-Midwives Association
California WIC Association
Center on Reproductive Rights and Justice, UC Berkeley School of
Law
Forward Together
Fresno Barrios Unidos
Guam Communications Network
Moms Orange County
National Center for Youth Law
Physicians for Reproductive Health
Planned Parenthood Affiliates of California
Teen Success, Inc.
Several individuals
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Opposition
Association of California School Administrators (oppose unless
amended)
Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087