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