Employers face substantial additional payment obligations for employees who need to express breastmilk in the workplace under the terms of a model policy issued by the New York State Department of Labor (“DOL”) that implements recent amendments to the state’s law on this subject.

How the Law Has Changed

Existing New York law had granted employees the right to express breastmilk in the workplace for up to three years post childbirth, and the state’s model policy granted employees the right to take unpaid breaks of at least 20 to 30 minutes for that purpose at least once every three hours.  We summarized those requirements and related obligations with regard to the type of accommodation to be provided in this prior blog article.

More recently, as part of the new budget bill and as we reported in the most recent issue of Takeaways, the state amended that law effective as of June 19, 2024, to require employers to provide some period of paid break time for employees in this context.  The law specifically requires employers to provide “paid break time for thirty minutes, and permit an employee to use existing paid break time or meal time for time in excess of thirty minutes” to allow the employee to express break time where the employee reasonably needs to do so.

Why This Is Novel

The concept of providing any paid break time to express breastmilk is a substantial departure from the norm, as no other state currently requires employees to receive paid time off in this context.  The revised law also removes the expectation that breaks will be taken at most every three hours, to adopt a more individualized standard based on the reasonable needs of the employee.

How the DOL Weighs In

More astounding, though, is the DOL’s interpretation of the law.  While I typically prefer to paraphrase and simplify statutory language in a blog posting rather than quote the law directly, what the legislation says is important here because the DOL appears to have taken a very expansive construction that does not align with how I or others might have understood the law.

A new model Policy on the Rights of Employees to Express Breast Milk (ny.gov) issued by the DOL states that employers:

“must provide paid break time as often as an employee reasonably needs to express breast milk. The number of paid breaks an employee will need to express breast milk is unique to each employee and employers must provide reasonable break times based on the individual”

[emphasis added].  Similar statements are included in fact sheets that the DOL has developed for employees and employers.  With a slight change in phrasing in its model policy, the DOL has pivoted from requiring employers to provide up to 30 minutes of daily paid break time, to requiring employers to provide potentially 90 minutes or more of paid break time each day to nursing employees.

What Employers Should Do

Employers need to update their current policies.  If the policy has not been updated since prior to the introduction of break time to express breastmilk, then an update is overdue.  Even those employers that have policies granting break time in this context and anticipating it would be paid will likely need to update their policies to align with the DOL’s broader interpretation of the law.

Beyond bringing policies into compliance, employers should consult with legal counsel on how best to comply with this new legal requirement.

By Tracey I. Levy