New York State employees have certain protected rights when it comes to expressing breast milk in the workplace. Here is what employers need to know.
New York State Breast Milk Expression in the Workplace
This law applies to all public and private employers in New York State no matter how many employees or the size of the business.
First and foremost, the law sets a minimum standard policy for lactation accommodations. However, employers should consider providing additional accommodations, as lactation accommodations can have a large impact on employee mental health.
New York State has updated and expanded its lactation accommodations requirements. The changes take effect June 7, 2023.
Policies should now include the following to be compliant with the new requirements:
- Employee rights under the lactation accommodations law
- Break time expansion from one break every three hours to “each time an employee needs to express breastmilk”
- How employees can request space at work to take lactation breaks
- Employer’s promise of responding to lactation space requests within five (5) business days
- The designated space for lactation (This is part is optional. However, if it is not in the handbook or policy, employers must inform all employees of the designation of the space as soon as possible)
Employers of all sizes will still be required to allow employees to take lactation breaks for up to three (3) years after childbirth.
The following updates to employer requirements are also now as follows:
- Employers must designate a space for employees to express breastmilk at work that is well-lit, private, and near the employee’s work area.
- The lactation space must have a chair, a working surface, access to clean running water nearby, and an electrical outlet if the workplace has electricity. The space cannot be a bathroom or toilet stall.
- Lactation spaces that are not designated solely for lactation purposes must be available when the employee needs it. Other employees should be made aware that those who are lactating have priority to access the designated space.
- Employers are required to adopt a policy and distribute it to employees upon hire, once a year, and when returning to the workplace after the birth of a child.
- Employers must allow employees to store breastmilk in refrigerators in the workplace, if there are any.
Undue Hardship Update
If providing employees with a compliant room/location for lactating would pose an undue hardship for employers, employers must still provide lactation breaks to employees and must make a reasonable effort to provide a private, non-bathroom space near the employee’s work area to express breastmilk.
Congress passed the PUMP for Nursing Mothers Act (to amend the Break Time for Nursing Mothers Act), effective December 29, 2022, to extend protections to exempt executive, administrative, and professional employees. Additionally, the Federal Government will put into place Pregnant Workers Fairness Act (PWFA) effective June 27, 2023, that will provide pregnant employees and job applicants with ADA-style protections, and adopts the same definitions of “reasonable accommodation” and “undue hardship” as used in the ADA. Please note that New York State supersedes these requirements.
Under New York's Lactation Accomodation requirements, employers are required to provide reasonable unpaid break time for their employees to express breast milk, up to three years following childbirth. Employees may also use paid break time if they wish.
Employers may not discriminate in any way against an employee exercising their rights under this law, and employees must be permitted (though never forced) to work before or after their normal shift hours to make up any time used as unpaid break time to express breast milk (so long as the time worked is during business hours).
It is also important that employers understand it is required to inform employees and new hires of their rights under this law.
How Many Breaks Are Permitted?
Employees are allowed to request a break to express breast milk up to every three hours. However, "the number of unpaid 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" per state law.
How Long Are Breaks?
Unpaid breaks provided for the expression of breast milk must be at least twenty minutes. However, if the lactation room is far away from the employee's workspace, they may be entitled to a 30 minute break. An employee must also be allowed to take a longer unpaid break if needed.
Does the Law Apply to Remote Employees?
Remote employees are also entitled to unpaid break time to express breast milk, however, none of the lactaction room accomodation requirements apply. Being that the employee is also remote, breaks need only be at least 20 minutes (unless the employee needs more time as stated above).
If an employee must give employers reasonable advance notice in order to express breast milk at work.
The notice is intended to give employers the appropriate time to find an appropriate location and adjust schedules if needed. Such notice should be a written request. Employers must respond to this request for a room or other location to express breast milk in writing within five days, then notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.
Lactation Room Requirements
There are also certain requirements regarding the rooms or locations designated for expressing breast milk.
Generally, such a room or location must:
- Be close to an employee’s work area
- Provide good natural or artificial light
- Be private – both shielded from view and free from intrusion
- Have accessible, clean running water nearby
- Have an electrical outlet (if the workplace is supplied with electricity)
- Include a chair
- Provide a desk, small table, desk, counter or other flat surface
- Not be a restroom or toilet stall
Important to note is that 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, and should there be more than one employee at a time needing access, an employer may dedicate a centralized location to be used by all employees.
Get Help Updating Your Handbook Policies
If the updates to New York Lactation Accommodations have thrown your handbooks out of date and out of compliance, a New York HR Service can help.
Contact EBC to see how we are already helping countless of New York businesses ensure compliant handbooks and overall business compliance as companies that fall out of compliance may find themselves facing serious New York labor law penalties and fines.