lactation accommodation Archives - Levy Employment Law

11

July, 2023

All New York Employers Need to Add Policies and Modify Practices to Comply with New State and Federal Protections for Employees Expressing Breast Milk

Five years after New York City began requiring employers to provide accommodations for employees expressing breast milk at work and adopt lactation accommodation policies with very specific provisions, New York State has added its own law on the subject. The state law, which took effect June 7, 2023, imposes a new layer of requirements that impact even the most scrupulous of New York City employers. Both the state and city laws are more expansive than, but operate within the context of, a nationwide requirement that employers provide reasonable break time and a private place other than a bathroom in which a nursing employee can express breast milk.

Requirements with Regard to Break Time

Federal law requires employers to provide breaks to employees to express breast milk for the first year after childbirth, at regular intervals and on a schedule that is flexible enough to accommodate the employee’s varying pumping needs over time. Employees working remotely are similarly entitled to this break time to express breast milk in their homes. The breaks generally need not be compensated unless the employee is not completely relieved of duty, the breaks are for less than 20 minutes, or the employer otherwise provides paid break time.

New York State builds on these requirements in several respects. First, employees are entitled to accommodation for up to three years after childbirth under the state law (New York City law has no defined end date to the accommodation). Second, a model policy issued by the state as the minimum compliance standard requires that employees be granted breastfeeding breaks at least once every three hours, if requested. Third, the state’s model policy presumes a 20-minute unpaid break period and requires minimum break periods of 30 minutes to include travel time if the designated lactation room is not close to an employee’s work area. Fourth, the state’s model policy provides that employees can make up the unpaid break time spent during the day by working before or after their normal shift if the time falls within the employer’s normal work hours.

Requirements with Regard to Location

Employers at the federal, state and New York City level must start from the premise that they should be seeking space that can be used for expressing breastmilk that meets the following minimum requirements:

it cannot be a bathroom;
it should be in reasonable proximity to the employee’s work location;
it includes a place to sit and a flat surface (table or counter) on which to place the pump and related items;
there ideally is access to electricity (New York City requires this unless it imposes an undue hardship, while state and federal law recognize it may not be feasible in all work locations);
there should be nearby access to running water;
there is access to refrigeration (New York City requires this, absent an undue hardship) or at least a space to safely store the breast milk; and
the space is reasonably private so as to ensure the employee will be shielded from view and intrusion.

New York State’s model policy also addresses windows and lighting – that there should be adequate artificial or natural lighting, and any windows should have coverings. New York State also imposes some additional, very specific requirements with regard to privacy. Ideally, the space should be a separate room with a working lock on the door. If that is not feasible, then a cubicle can be designated for usage as a last resort, but the walls must be at least seven feet tall, the cubicle must be fully enclosed, and a sign needs to clearly indicate when it is in use.

The state’s model policy states that a single room may be made available to more than one employee at a time and the state does not dictate any parameters with regard to privacy among the employees who may be using the space simultaneously. New York City employers should note, however, that the city expects employers to discuss options with all employees who use the shared space, including finding alternative space, sharing the space with screens, curtains or other privacy measures, or creating a schedule for use.

Requirements with Regard to a Written Policy

New York State and New York City both require employers to distribute to employees written policies with regard to the right to express breast milk in the workplace. These policies are very prescriptive in their language. New York City requires that the policy specifically address how to request access to a lactation room; the employer’s obligation to respond to a request within no more than five business days; and a procedure for when two or more individuals need to use the room at the same time.

New York State’s model policy on employee rights is even more prescriptive, and touches on different points. The state’s policy does not dwell much on the process for requesting access, beyond a requirement that the employee provide reasonable advance notice in writing and that the employer respond within five days. Rather, the focus of the state’s model policy (which is three pages in length), is on providing context to the accommodation requirement. The model policy delineates all the requirements with regard to break time, the dedicate space for breast milk expression, and providing notice to employers. It also advises employees of their legal rights with regard to expressing breast milk, with reference to other federal and state wage and hour laws, and it provides resources and contact information for employees to file a complaint with the Department of Labor if they believe their rights under the law are not being honored.

The state Department of Labor refers to its policy as the minimum required of employers to be in compliance with the law. Practically speaking, the length of the policy, and the state’s expectation that it will include delineation of all the requirements with regard to break time and outfitting a dedicated space, make it ill-suited for inclusion in an employee handbook. The law does not actually require that the policy be included in a handbook, but rather that it be distributed in writing to employees at three intervals: upon hire, once annually, and when an employee returns to work following the birth of a child. Given those requirements, employers may want to simply adopt the state’s model policy for this purpose and distribute it to employees at the appointed occasions.

By Tracey I. Levy

7

February, 2023

Legally-Prescribed Policy Wording Ensnares Those Striving to Be Employers of Choice

I write a lot of policies. They come with the advisory work that I do, and I also gravitate toward those types of projects. In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.

Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers. Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.

Specificity Feels Like Mandating Minutia

New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers. Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days. The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time. New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.

I draft the appropriate language, and then the conversations with my clients go something like this:

Client: Five days?!

Me: Yes, five business days.

Client: Of course we are going to be responsive. Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?

Me: I understand you will get back to people promptly, but New York City law says that language has to be there.

Client: And why do we have to spell out what happens if two people need the room at the same time? We’ll just work it out.

Me: I know you will, but again, the city requires it.

Some Provisions Are Effectively Meaningless

Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer). That conversation generally proceeds like this:

Client: What is this part about carrying over days but then not being able to use more than one year’s allotment? What is the point of that?

Me: It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.

Client: Okay, I get that. But we front-load the days at the start of each calendar year. Everyone starts with a fresh bank with no accrual time.

Me: I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days. Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.

Client: So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!

Me: Exactly.

My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.

Two Universes of Employers

New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work. Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so. Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale. The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.

The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies. Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.

As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests. They are striving for a friendly tone, not legalistic language. Increasingly they are experimenting with various versions of unlimited time off. “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.

But prescriptive policies do not easily allow for that. Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.

Considerations for Legislators and Regulators

Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire. This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.

By Tracey I. Levy

25

March, 2022

3 Handbook Policy Requirements that New York Employers May Overlook

By Tracey I. Levy and Alexandra Lapes

Spring cleaning is a great time for employers to revisit their employee handbook policies to confirm that they comply with current legal obligations. In addition to updates prompted by new legislation, there are more long-standing, New York-specific requirements that we find employers may overlook. These include specific provisions on accommodation of breastfeeding employees, protection of reproductive health decisions, and smoking prohibitions.

Policy on Lactation Accommodation

All New York State employers are required to make reasonable efforts to provide their employees with a designated room or other private, sanitary location that is not a bathroom, as well as reasonable unpaid break time, for the purposes of expressing breast milk. New York City law requires that employers have a written policy regarding the rights of nursing mothers to express milk at work, which it distributes to all employees upon hire. The New York State Division of Labor Standards has similarly issued guidelines that employers are expected to provide employees who are returning to work following the birth of a child with written notice, either individually or through a written handbook policy, regarding their right to break time and an appropriate location for expressing breast milk.

A declarative statement as to the availability of appropriate time and space to express breast milk, or of the employer’s support of its breast-feeding employees, may not be sufficient. The New York City law specifies a plethora of provisions that must be in the written policy, including:

a statement of the employee’s right of access to an appropriate lactation room and reasonable break time to use it;
how to request access to the designated lactation room;
reference to the employer’s obligation to respond to access requests within a reasonable timeframe, not to exceed five business days;
a procedure to follow when two or more individuals need to use the room at the same time; and
assure employees that if the request poses an undue hardship, the employer will engage in a cooperative dialogue with the employee to provide a reasonable accommodation.

Reproductive Health Decisions Policy

All employers in New York State are prohibited from discrimination based on an employee’s or the employee’s dependent’s reproductive health decisions. The law further requires that any New York employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law. This includes notice that:

employers are prohibited from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making;
employers are prohibited from discriminating or retaliating against an employee based on the employee’s or dependent’s reproductive health decision making;
employers are prohibited from requiring an employee to sign a waiver of the employee’s right to make reproductive health decisions; and
employees have the right to bring a civil action against the employer for violation of the law and available remedies.

Some employers satisfy this obligation with a separate reproductive decisions policy. Others may choose to incorporate the requisite provisions pertaining to reproductive health decisions into existing handbook policies that prohibit discrimination and retaliation and specify employees’ legal rights and available remedies under the laws against harassment, discrimination and retaliation.

Note: a March 29, 2022 federal district court decision, CompassCare et.al v. Cuomo, has permanently enjoined enforcement of the notice requirement with regard to reproductive health decisions, on the grounds that it violates the First Amendment.

Smoking Prohibitions in the Workplace

It has been several decades since New York State, New York City, and various counties adopted laws prohibiting smoking in the workplace and other public areas, such that those restrictions are no longer novel or surprising to most workers. This cultural shift may lead employers to overlook a long-standing requirement in many of the local laws, including from Westchester County and Suffolk County, that employers adopt and maintain written policies against smoking in the workplace. New York City’s law goes a bit further in its specificity. The New York City law requires every employer to have and distribute to all new employees when hired a written policy outlining:

the legal prohibitions on smoking and the use of electronic cigarettes;
the protection from retaliation for employees or applicants who exercise their right to a smoke-free workplace; and
the employer’s procedure for an employee to raise concerns in the event of perceived retaliation.

Takeaways

The passage of time can dull any employer’s recollection of when handbook policies are simply memorializing employer expectations and practices, and when those policies are driven by legal requirements. The latter must be maintained and updated as the law changes. Now is a great time for employers to take stock of their handbook policies, and ensure they have the requisite provisions to comply with the law.