Contributing Author, Matthew A. Atewe, Summer Associate
In December, we sent an update regarding an amendment to New York State’s existing law on nursing employees and breastfeeding accommodations. This law became effective on June 7, 2023, so employers should note take of several new obligations and ensure they are in compliance.
Change: The New York State Department of Labor has issued a written policy regarding the rights of nursing employees to express breast milk, as well as two new sets of FAQs. Employers must provide the state-created policy to each employee upon hire and annually thereafter, and to employees upon returning to work following the birth of a child.
Action Item: Distribute the newly written policy to employees. If your Employee Handbook discusses breastfeeding accommodations, you may need to update your policy to ensure it accurately reflects the changes to the law.
Change: An employee must be allowed to express breast milk each time the employee has a reasonable need to do so (at least every three hours, for at least 20 minutes each break) for up to three years following childbirth. If an employee wants to express breast milk at work, they need to give employers reasonable advance notice, generally before returning to the workplace if the employee is on leave. Employees wishing to request a room or other location to express breast milk in the workplace should do so by submitting a written request to their direct supervisor or individual designated by their employer for processing requests. Employers must respond to this request for a room or other location to express breast milk in writing within five days. Employers may not terminate, threaten, penalize, or otherwise discriminate or retaliate against an employee who has exercised their rights under this law. Employers must notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.
Action Item: Be aware, there is no exception to an employer’s obligation to provide either reasonable unpaid break time, or paid break time or meal time, for the expression of breast milk. Employers must also ensure an employee’s request is responded to in a timely manner. An employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location.
Change: There does not need to be a separate space for every nursing employee. An employer may dedicate a single room or other location for breast milk expression. Upon a nursing employee’s request, an employer must designate a room or other location for an employee to express breast milk in the workplace, and:
• The room cannot be a restroom or toilet stall;
• The room must be (1) in close proximity to the work area, (2) well lit, (3) shielded from view, and (4) free from intrusion from other people in the workplace or the public;
• The room must have a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet;
• The room must be available when needed and may not be used for any other purpose while in use by the nursing employee;
• Employers must provide notice to all employees as soon as practicable when a room has been designated for employees to express breast milk; and
• If the workplace has refrigeration, the employer must extend access to refrigeration for the purpose of storing expressed milk.
If complying with the above requirements would cause undue hardship, the employer must still make reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area, for an employee to express breast milk in privacy.
While an employer cannot require that an employee works while expressing breast milk, nothing in Labor Law 206-c prevents an employee from voluntarily choosing to do so. Time working while expressing breast milk must be compensated.
Action Item: Ensure the designated location in your workplace is compliant with these requirements. If you do not currently have any breastfeeding employees, it may be helpful to plan ahead and determine whether you could provide a compliant space upon request.
If you have any questions, please reach out to a member of our Labor and Employment team.