It’s the Year of the Lactating Employee

On December 9, 2022, New York State amended the Nursing Mothers in the Workplace Act (the “Act”) to expand protections for lactating employees in New York State.  The new requirements took effect on June 7, 2023.  Similarly, at the federal level, the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) and the Pregnant Workers Fairness Act (the “PWFA”) took effect on April 28, 2023 and June 27, 2023, respectively.   Employers need to “check the boxes” on several new requirements from these collective legal developments.

The PUMP Act requires employers to provide nursing employees with unpaid, reasonable break time every time the employee has such a need for one year after the child’s birth.  Importantly, the employee must be completely relieved from duty for the break to be unpaid.  For teleworking employees, employers must provide break time as if those employees were working on-site.  The Wage and Hour Division of the U.S. Department of Labor offered several examples of what could constitute “reasonable break time,” including an example of an employee who takes four 25-minute breaks each day.

Insofar as New York State obligations are concerned, as a reminder, New York State has had a nursing mothers’ rights law since 2017.  And New York City, for covered employers, goes even further than the State law.

On December 9, 2022, however, Governor Kathy Hochul signed legislation that would expand the State’s law to mostly track New York Cit’s requirements. Here’s what’s required for NYS employers now:

Upon the request of an employee, employers must designate a room or location for an employee to express breast milk that is (i) in close proximity to their work area; (ii) well lit; (iii) shielded from view; and (iv) free from intrusion from other persons in the workplace or the public. In addition, the room must contain, at minimum, a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. The room cannot be a restroom or toilet stall. If the function of the room is not solely dedicated for lactation, it must be made available to a nursing mother when needed and cannot be used for any other purpose while being used by an employee to express milk. Employers must provide notice to all employees when the room has been designated for lactation. An employer must also provide access to refrigeration to store milk, if the workplace has access to refrigeration. Finally, the amendment clarifies that a nursing mother is entitled to take a lactation break “each time such employee has reasonable need to express breast milk.”

New York State employers are not required to comply to the extent these requirements are impractical because they would impose an “undue hardship” on the employer by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. However, employers are not relieved of making “reasonable efforts” to provide an alternative location (other than a restroom or toilet stall) where an employee can express breast milk in privacy. Note that if providing a lactation room would cause an undue hardship, the New York City law just requires a “cooperative dialogue” with the employee to identify an appropriate accommodation that meets their needs.

Unlike the New York City law, which only applies to New York City employers with 4 or more employees, the Act applies to employers of any size in New York State. In addition, the State law requires that employers provide employees with the Department of Labor’s written policy on the rights of nursing mothers to express breast milk in the workplace both upon hire and annually thereafter, and to employees upon returning to work following the birth of a child.  The New York City law only requires employees to create and provide their own policy consistent with the City law.

New York employers should ensure that they are familiar with these legal requirements so that they can comply with the notice requirements and adequately respond to any request of employees who will need break time for lactation purposes.  New York State also only recently published its model policy, so employers should ensure that they are using such policy and distributing it to employees as required.