Employers in the private and public sector must comply with new breastfeeding room requirements pursuant to a Guideline issued on February 11, 2021 by the Puerto Rico Women’s Solicitor Office (WAO, subsequently; Oficina de la Procuradora de las Mujeres).
Although the Guideline was not enacted as a mandatory regulation, it will be used to interpret the general obligations regarding breastfeeding rooms set forth in Act 427-2000, as amended, for private employers and in Act 155-2002, as amended, for government entities in Puerto Rico. These laws require employers to provide a private, safe, and hygienic space, separate from the restrooms, with proper ventilation and electric plugs, to express breastmilk.
Breastfeeding rooms must be easily accessible to working mothers and located in a low-traffic area of the premises. The privacy standard set forth in the Guideline requires that breastfeeding rooms are for the exclusive use of breastfeeding mothers, who will make reservations in a registry established for that purpose. Windows with curtains and smoked glass that impedes visibility to the interior of the room are allowed; surveillance cameras are not.
In order to ensure safety, breastfeeding rooms must have a lock, may not be used for any other purpose and may not contain materials that may constitute a security risk or that may affect air quality. The Guideline stresses the need to ensure proper ventilation.
In terms of hygiene, the Guideline states that breastfeeding rooms must be clean and have sinks to allow mothers to wash their hands and clean their equipment. Having a bathroom nearby does not meet this standard. The employer must keep a log to record when the room is cleaned.
The Guideline states that the room must have electric outlets for operating electric breast pumps, a comfortable armchair or rocking chair, a table to place breast pump utensils, and a refrigerator or small fridge to store breastmilk.
The Guideline also extends to private entities the requirement set forth in Act 155-2002 for public entities of establishing rules for the use of the breastfeeding room.
The WAO may inspect breastfeeding rooms and make public its inspection criteria. The WAO may also issue fines of up to $10,000 for not complying with breastfeeding room requirements (even though it is not clear that it has the power to assess such fines pursuant to its Organic Law, Act 20-2001). It is worth noting that these fines would be on top of the penalties provided by Act 427-2000; eg, a $3,000 fine or the payment of three months of the working mother’s salary (whichever is greater). While Act 427-2000 provides this penalty for an employer’s failure to allow the employee to take the statutorily-required breastfeeding period, the Supreme Court has held that it could also be applied to an employer that did not have an adequate breastfeeding space, as this fact impaired the employee’s ability to take the breastfeeding period.
The Guideline does not mention how it will be implemented in the case of employers who share common spaces, such as stores in shopping malls, multi-office buildings and food and entertainment parks. Our recommendation to employers that only have common breastfeeding rooms available is to make sure that that their landlords comply with the Guideline and that the presence of a compliant breastfeeding room be included as a condition in their lease agreements.
If you have any questions, please contact the authors or your DLA Piper relationship attorney.