BILL ANALYSIS                                                                                                                                                                                                    



                                                                     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