PRINTER'S NO. 1970
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1739
Session of
2021
INTRODUCED BY DALEY, MOUL, D. MILLER, HILL-EVANS, SAMUELSON,
McCLINTON, T. DAVIS, BENHAM, SANCHEZ, SCHLOSSBERG, GUENST,
FIEDLER, MALAGARI, HOHENSTEIN, SIMS AND HANBIDGE,
JULY 30, 2021
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JULY 30, 2021
AN ACT
Providing for workplace accommodations for nursing mothers.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Workplace
Accommodations for Nursing Mothers Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Department." The Department of Labor and Industry of the
Commonwealth.
"Employer." An individual, association, partnership,
corporation, organization or governmental body, including the
Commonwealth and its political subdivisions and their
instrumentalities, employing one or more individuals in this
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Commonwealth.
"Undue hardship." An action that would result in significant
difficulty or expense when considered in relation to factors
such as the size of the employer, the financial resources of the
employer or the nature and structure of the employer's
operation.
Section 3. Right of nursing mothers to express breast milk in
workplace.
(a) Break time.--An employer shall provide reasonable unpaid
break time or permit an employee to use paid break time or
mealtime, or both, to allow the employee to express breast milk
for the employee's nursing child.
(b) Location.--An employer shall provide a room or other
place, other than a bathroom, which may be used by an employee
to express breast milk for the employee's nursing child that is:
(1) shielded from view;
(2) free from intrusion from coworkers and the public;
and
(3) in proximity to the work area.
(c) Prohibited conduct.--An employer may not:
(1) Refuse to hire, bar, discharge from employment,
withhold pay from, demote or penalize an employee because the
employee expresses breast milk, or desires to express breast
milk, on the employer's premises in compliance with this act.
(2) Retaliate against an employee who makes a charge,
files a complaint or institutes or causes to be instituted an
investigation, proceeding, hearing or other action under or
related to this act.
(3) Retaliate against an employee who testifies, has
agreed to testify or assists or participates in any manner in
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an investigation, proceeding, hearing or other action under
or related to this act.
(d) Applicability.--An employer with fewer than 50 employees
shall not be subject to the requirements of subsections (a) and
(b) if the requirements would impose an undue hardship on the
employer.
Section 4. Violations.
(a) Complaints.--The following shall apply:
(1) An individual aggrieved by an alleged violation of
section 3 may file a complaint with the department within 90
days after the alleged violation. A complaint may be filed
orally or in writing.
(2) The department shall develop and post on its
publicly accessible Internet website a form to be used to
file a written complaint under this subsection.
(3) The department shall, within 15 days of receipt of a
complaint, provide the employer with a copy of a written
complaint or with written notice of the receipt of an oral
complaint and initiate an investigation. The department may
obtain the information it deems necessary to investigate the
complaint by any reasonable means, including:
(i) entering the employer's place of business at any
reasonable time to inspect the premises;
(ii) interviewing the complainant and other
employees;
(iii) interviewing representatives of the employer;
and
(iv) inspecting or copying documents or other
information, in whatever medium it exists, which relates
to the matters subject to this act.
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(4) An employer shall have 15 days from receipt of a
written complaint or notice of an oral complaint under
paragraph (3) to respond in writing to the department
regarding the complaint.
(5) Within 15 days following receipt of the employer's
response under paragraph (4) or within 45 days following
receipt of the complaint under paragraph (1) if the employer
does not file a response under paragraph (4), the department
shall notify the complainant and the employer in writing of
an initial determination as to whether a violation has
occurred, whether remediation is required, including
reinstatement and the payment of back wages, if applicable,
and the amount of the civil penalty, if any, the department
intends to assess against the employer under paragraph (7).
Within 10 days following receipt of the initial
determination, the employer shall either comply with the
remediation included in the notice and pay the civil penalty
to the department or contest the department's initial
determination by written notice to the department.
(6) If the employer contests the department's initial
determination, the department shall issue an order to show
cause to the employer within 15 days following the receipt of
the employer's written notice of contest and request an
administrative hearing, which hearing shall be scheduled
before the Secretary of Labor and Industry or the Secretary
of Labor and Industry's designee within 30 days of issuance
of the order to show cause. The hearing shall be conducted in
accordance with the provisions of 2 Pa.C.S. Ch. 5 Subch. A
(relating to practice and procedure of Commonwealth agencies)
and 1 Pa. Code Pt. II (relating to general rules of
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administrative practice and procedure).
(7) Upon a determination by the department after the
conclusion of the hearing under paragraph (6) that a
violation of section 3 has occurred, the department shall
enjoin the employer from continuing the violation, may order
the employer to pay compensatory damages to the complainant
and may order reinstatement of and back pay to an employee
for retaliation in violation of section 3(c). The department
may assess a civil penalty not to exceed $300 for a first
violation and $1,000 for each subsequent violation. The
department's determination under this subsection shall be
considered an adjudication under 2 Pa.C.S. Ch. 7 (relating to
judicial review).
(b) Judicial action.--The following shall apply:
(1) An employee may file an action in a court of common
pleas of competent jurisdiction seeking preliminary
injunctive relief if the employee determines that immediate
relief from an alleged violation of section 3(a) or (b) is
required.
(2) An individual aggrieved by an alleged violation of
section 3(c) may file a private cause of action seeking any
reasonable remedy, including employment, reinstatement, lost
wages and other damages.
(c) Additional remedies preserved.--Nothing in this act
shall be construed to impair existing rights or remedies
available to an employee for a violation by an employer of any
provision of section 3.
(d) No exhaustion of remedies.--No individual may be
required to exhaust the administrative remedies provided in this
section prior to proceeding under subsection (b) or (c).
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(e) Attorney fees.--The following shall apply:
(1) If the department determines under subsection (a)(7)
that a violation of section 3 has occurred, the department
may award attorney fees and costs to the complainant. If the
department determines that no violation of section 3 has
occurred, the department may award attorney fees and costs to
the employer if the employer proves that the complaint was
filed in bad faith.
(2) The court may award attorney fees and costs to the
prevailing party in an action filed under subsection (b).
Section 5. Notification.
(a) Notification to employees.--An employer subject to this
act shall post and keep posted a notice in accordance with the
following:
(1) The notice shall be prepared or approved by the
department.
(2) The notice shall summarize the requirements of this
act and include information pertaining to the procedures and
remedies to enforce this act.
(3) The notice shall be posted in conspicuous places on
the premises of the employer where notices to employees are
customarily posted.
(b) Information.--The following apply:
(1) The department and the Department of Health shall
publish on their publicly accessible Internet websites
information and links to other Internet websites where the
public can access information concerning expressing breast
milk, including information relating to expressing breast
milk in the workplace.
(2) The department shall provide on its publicly
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accessible Internet website information and links to other
Internet websites where employers can access information
regarding methods to accommodate nursing mothers in the
workplace.
(3) The department shall consult with appropriate
organizations or associations to determine the appropriate
information and Internet website links to provide employees
and employers with the most accurate and useful information
available.
Section 6. Effective date.
This act shall take effect in 60 days.
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