Breastfeeding protections have gone mainstream. Through the magic of a budget spending bill, nursing employees in workplaces throughout the country now have legal protections that will afford them break time and access to spaces outside of toilet stalls in which to express breastmilk. That is a sea change in many parts of the country, and a more modest shift for employers in the tri-state area of New York, New Jersey and Connecticut, where these protections have been afforded to varying degrees under state and local laws going back nearly a decade.
Amazingly, the new laws are fairly consistent with those already in existence, which makes compliance less burdensome for employers. The laws focus on requiring three things:
- suitable space;
- sufficient time; and
- protected access.
Make it Private
Nursing a baby often can be done discretely even in public, under cover of a light blanket, shawl or loose garment. Expressing breast milk to be stored in bottles for later use is an entirely different operation and experience, as anyone who has seen or used the various pumping apparatuses well knows. For that reason, the existing and new laws entitling employees to suitable space for expressing breast milk all prioritize that the space offer “privacy.” Often the laws clarify that means the space should be “shielded from view” and “free from intrusion.” And to dispense with the most obviously private but apparently not suitably hygienic option, the laws consistently state that the space cannot be a restroom or toilet stall.
Employers looking to achieve compliance should consider options like a private office or conference room with solid walls, blinds, or filtered glass – and a lock on the door or at least signage advising against entry while the room is in use. Even a storage closet, if appropriately cleared out, may be fit for this purpose.
While the federal law only mandates privacy, the state and local laws often also consider accessibility. New York, New Jersey, Connecticut and New York City, for example, all require that the designated space be in close proximity to the employee’s work area. This criterion serves employers’ interests, as well, in that it minimizes the time that the employee needs to spend away from the work area.
Some of the laws additionally require that the designated space be outfitted appropriately to its purpose. New York State and New York City require that the space be well lit and include a chair and working surface. New York City and Connecticut require access to an electrical outlet, and New York City further requires that employees have nearby access to refrigeration. New York State recognizes greater variability in work locations and therefore requires access to an outlet only if the workplace is supplied with electricity, and access to refrigeration if it is available. Connecticut also requires nearby refrigeration or an employee-provided cold storage unit. The New York state and city versions finally require access to clean running water.
Optimally, therefore, employers looking to achieve compliance should be looking to provide the following furnishings and equipment:
- a chair and work surface;
- ample light;
- an electrical outlet; and
- nearby running water and refrigeration.
Employers that incorporate those items will meet their obligations under the current jurisdictional variations in the law.
Undue Hardship Is Considered
Employers with fewer than 50 employees are exempt from the federal PUMP Act if they can demonstrate that compliance would impose an undue hardship. Comparable state and local laws similarly recognize an undue hardship exception, but employers invoking this exception should be prepared to demonstrate that they reasonably explored options for providing suitable space and were unable to do so.
Access to a suitable location would be virtually meaningless if employees could only use it on their meal break. The laws therefore additionally require employers to provide “reasonable” break time for employees to express breastmilk. The federal “PUMP Act” grants this right to break time for up to one year after the child’s birth. The New York State version extends the protection to up to three years after childbirth, while other state laws are not specific as to duration.
New York State has issued guidance that employees are entitled to break times of at least 20 minutes in duration in these circumstances, but can use more or less time as needed. The U.S. Department of Labor previously had advised that a break of 15 to 20 minutes to pump, plus some time for set up and clean-up, was most common. The DOL has removed any specific reference to duration in its most current Fact Sheet on break time for nursing employees. Employers generally are not required to pay employees for break time taken to express breast milk, provided the time is actually a break and the employee is not performing work while pumping.
Reasonableness is a Variable Threshold
“Reasonableness” is determined through the same process that employers are expected to follow for accommodating employees for other legally-protected reasons. In New York City, the process is called a “cooperative dialogue,” and the city’s phrasing is indicative of that which is expected of all employers in this context – some degree of discussion, consultation and consideration of the employee’s needs in relation to the nature, size and operations of the employer’s business.
The duration of break time needed for expressing breast milk may include factors beyond the employer’s control, such as the speed of the pump itself, as well as factors that the employer can influence. For example, employers that offer a secure location for employees to store their breast pump in close proximity to the employee’s work space and/or the designated break room can thereby reduce the time needed for set-up and cleanup.
One of my clients was frustrated that an employee was taking hour-long breaks to express breast milk. In speaking with the employee, the employer learned that each break period, the employee would leave the work area, go out to her car in the parking garage to retrieve her breast pump and walk to the designated room (waiting for elevators along the way), and then return her pump to her car before coming back to the work area. A secure storage solution was all that was needed to cut the break time in half. The more comfortable an environment the employer can provide, and the fewer obstacles an employee faces in cleaning and storing needed equipment for pumping, the less time an employee will need to be away from productive work.
All the laws related to nursing employees include an assurance that the break time and designated spaces are legally-protected. This means that employers cannot discriminate or retaliate against employees for requesting or using the time or facilities, or for breastfeeding in the workplace. Some of the laws, including New York State, New York City and Connecticut, additionally require that employees receive notice of their rights with regard to expressing breastmilk. In New York, the state and city laws additionally require employers to have written policies with specifically-delineated provisions.
Compliance with these varied laws is more readily achievable than, for example, many of the paid leave laws. Employers must still, however, note the variations in legal requirements and adjust their workplace practices accordingly.
By Tracey I. Levy