Once again, we are dealing with a bill in the legislature that mandates expanded access to Lactation Rooms in commercial buildings.  The bill, AB 142 by Senator Weiner from San Francisco, is very similar to a bill he carried last year that was vetoed by Governor Brown.

As an industry our main concerns with the bill is that it brings building owners and managers into the middle of an employer-employee relationship in which we do not belong.

In terms of building code issues, the bill is very owner-occupied-centric.  The issues we have mainly occur with multi-tenant situations where responsibility for tenant improvements may be 100% on the owner, 100% on the tenant, or some combination thereof, but as the bill is written it ignores how leases are written and agreed upon.

Also, this bill assumes that all real estate markets across the state are the same – akin to those in coastal cities – and will be much more difficult to comply with in areas where tenants have less capital to work with.

Over the past week we have been working with our legislative committee, the author, and his staff to identify our specific issues and try to resolve them.  Here they are, and you are encouraged to share this information with local legislators:

ISSUE 1. The entity responsible for making modifications should be who is responsible for providing the space (it is common for tenants to control their own space).  This is how it is in S.F.’s ordinance.

SOLUTION:  Clarify the entity triggering the law is the responsible party for the accommodation (that may be a building owner, manager, or tenant).

ISSUE 2.  Currently the bill triggers a Tenant Improvements in spaces that not part of the qualifying event.  An improvement in one tenant’s Premises should not trigger requirements in other Premises in building/center.  Shifts cost and/or requires use of common space that may not exist.

SOLUTION:  Clarify this only trigger for the space triggering the law.

ISSUE 3.  If no reasonable space within Premises and no need to provide space elsewhere in building/center if no room in Premises.  This commonly occurs in an industrial campus setting where each company has its individual space.  SOLUTION:  Provide an exemption for properties that do not have common space/office space.

ISSUE 4.  Number of employees at one location instead of companywide.  Bill currently could trigger based on company employees not the actual number on site.

SOLUTION:  Clarify occupancy load pertains to the onsite employees only.

ISSUE 5. Technical issue.  “Daily occupancy” language is not a common term used in law.  There are fire marshal standards for max occupancy but there are not statewide standards for occupancy load.

SOLUTION:  Work with the Local Building Officials Association to determine now local building officials would determine how many employees will be on premises daily.

ISSUE 6. Technical/Governance issue.  We think the building code references are unneeded. The provision of lactation accommodation is a “service” as opposed to a physical occupancy.  Meaning that the “service accommodation” will be triggered at some point post-initial construction and will be dependent on the staffing needs of individual tenants in the building.  So, the appropriate response to this will be the provision of lactation accommodation by the employer (as opposed to the building owner).

SOLUTION:  Strike the building code references and provide direction through the Labor Code and or to local government inspectors.

We are suggesting a simpler way to write the bill would be to take the Labor Code provisions in current law and just require as part of that accommodation the table, chair, refrigerator, etc. be available. We will keep you posted.

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