?Since 2017, New York State’s Nursing Mothers in the Workplace Act has required New York employers to provide daily paid or unpaid break time to express milk for up to three years following the birth of a child, and to provide a room for expressing milk, in privacy, close to the employee’s work location.
On Dec. 9, 2022, Gov. Kathy Hochul signed legislation, effective June 7, 2023, to clarify these obligations.
New York City employers will be familiar with much of these clarifications, as they generally track requirements established in New York City’s 2018 lactation accommodations law. But the state law is different in several important respects.
Similar to the New York City law, the state amendment provides detailed requirements for the designated lactation room. Employers must designate a room or location for an employee to express breast milk that is in close proximity to their work area, well-lit, shielded from view, and free from intrusion from other persons in the workplace or the public. In addition, the room must contain a chair, a working surface, nearby access to clean running water and an electrical outlet, if the workplace is supplied with electricity.
The room cannot be a restroom or toilet stall. If the function of the room is not solely dedicated for lactation, it must be made available to a nursing mother when needed and cannot be used for any other purpose while being used by an employee to express milk. Employers must give notice to all employees when the room has been designated for lactation. Employers must provide access to refrigeration to store milk, if the workplace has access to refrigeration.
Finally, the amendment clarifies that a nursing mother is entitled to take a lactation break “each time such employee has reasonable need to express breast milk.”
Employers are not required to comply to the extent these requirements are impractical because they would impose an undue hardship on the employer by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Nevertheless, employers must still make reasonable efforts to provide an alternative location (other than a restroom or toilet stall) where an employee can express breast milk in privacy.
Note that if providing a lactation room would cause an undue hardship, the New York City law just requires a cooperative dialogue with the employee to identify an appropriate accommodation that meets their needs.
Unlike the city law, which only applies to New York City employers with four or more employees, the state law applies to employers of any size in New York State. In addition, the state law requires employers to give employees with the Department of Labor’s forthcoming written policy on the rights of nursing mothers to express breast milk in the workplace both upon hire and annually thereafter, and to employees upon returning to work following the birth of a child. The New York City law only requires employees to create and provide their own policy consistent with the City law.
New York State employers should ensure that their workplaces throughout the State comply with these new lactation accommodation obligations by June 6 and should establish internal protocols for complying with the policy notice requirements. The new state amendment also serves as a reminder to New York City employers of existing obligations under city law in addition to the new statewide requirements.
Christopher Collins is an attorney with Sheppard Mullin in New York City. Tamy Dawli is a law clerk with Sheppard Mullin in New York City. © 2023. All rights reserved. Reprinted with permission.
