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NYC employers: Are you prepared to comply with new lactation room requirements?

New York City employers should be ready to comply with new lactation laws, which are significantly stronger than current state and federal laws. The new laws go into effect March 18, 2019.

Updated legislation takes the lactation laws for employers further than the Fair Labor Standards Act (FLSA) and New York State Labor Law in that it applies to employers with four or more employees and requires employers to provide a private location for nursing mothers—a “lactation room,” containing, among other things, a place for personal belongings, and a refrigerator  in “reasonable proximity.”

The law, which amends the city’s existing administrative code, describes a lactation room as “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion and that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.”

The law also states that the both the lactation room and a refrigerator “suitable for breast milk storage” should be in reasonable proximity to the employee’s work area.  The law further specifies that room’s sole function while an employee is using it to express breast milk is that of “a lactation room.”

A second amendment requires that New York City employers distribute policies to all new employees that describe lactation room accommodations and the procedures for using it. There are also instructions for the New York City Commission on Human Rights to create and provide a model lactation room accommodation policy and make it available on its website.

According to the law, this policy should include:

  • directions for employees to submit requests to use the room;
  • the requirement that the employer respond to a request within “a reasonable amount of time not to exceed five business days;”
  • the procedure when two or more individuals need to use the lactation room at the same time;
  • that the employer provide reasonable break time for an employee to express breast milk pursuant to section 206-c of the New York State Labor Law; and
  • that if the request poses “an undue hardship on the employer,” the employer “shall engage in a cooperative dialogue” with the employee to come up with alternative accommodations.

It should be noted, however, that the law does not make it clear what constitutes “undue hardship on the employer.” Employers would be wise to consult legal counsel prior to making an “undue hardship” determination.

State and federal laws
Most employers outside of New York City are also obligated to provide accommodations to nursing mothers, and many states have laws regarding lactation in place that employers should be aware of. In New York State, for example, the New York State Labor Law provides nursing mothers the right to pump milk at work for three years after giving birth. Further, the employer must allow the employee to use paid break or meal times (or reasonable unpaid break times) to pump breast milk, and employers must make “reasonable efforts” to provide a private room near the employee’s work area where the employee can express her milk privately. The law explicitly provides that employers cannot discriminate against employees “who choose to express breast milk in the work place.”

Federal law currently requires that most employers of 50 or more employees provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth.” The law also requires employers to provide a place for expressing breast milk that is not a bathroom and is “shielded from view and free from intrusion from coworkers and the public.”

Take action
There are many sound reasons for employers to ensure that they have a lactation policy for nursing mothers that is legally compliant and appropriately accommodates their employees’ needs.  New York City employers who have not recently updated their lactation policies for nursing mothers may face consequences if they do not comply with the updated legislation.  Employers would be well-served to immediately update their lactation policies and contact an employment attorney to ensure that they are in full compliance prior to the effective date of the updated laws.

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