As we have mentioned in prior issues of Attorney’s Corner, the New York City Counsel is one of the most pro-active legislative bodies in the nation, passing new laws and refining existing ones at a dizzying pace. Recently, the Counsel passed a set of bills applicable to employers with 15 or more employees that, once signed into law, will require the establishment of lactation rooms and related policies for breastfeeding employees.

Section 206-c of New York’s Labor Law already guarantees the rights of nursing mothers to express milk in the workplace. Among other things, the Labor Law requires that employers either provide reasonable unpaid break time (or permit the use of paid break and/or meal time) each day for an employee to express breast milk for her nursing child for a period of up to three years. Employers are also required to make reasonable efforts to provide a private room or other location, other than a restroom, for the purposes of expressing breast milk. Lastly, employers are prohibited against discriminating against an employee who chooses to express breast milk in the workplace.

The City’s new law expands upon the State’s existing requirements by directing employers to set up dedicated lactation rooms for breast milk expression and establish policies and procedures for their use. If setting up a lactation room would pose an undue hardship, the employer is obligated to engage in a “cooperative dialogue” with the employee to discuss potential alternative arrangements.

The first step employers must take to comply with the law is find a suitable location on their premises for the lactation room. This isn’t as difficult as it may at first sound, and the room need not be a lactation room 24/7. Just about any clean space that is not a restroom and that can be made private will work, such as an unused office, or a supply room. Where the room is used for multiple purposes, the law requires that access be restricted to others when it is in use as a lactation room. In other words, if you designate a file room for the purpose, while an employee is expressing milk others should not be walking in and out to file paperwork. The room must have at a minimum a locking door, an electrical outlet, a chair, a table or other surface on which to place a breast pump and related personal items, window coverings if there is a window, and close access to running water and refrigeration (the water and refrigeration can be in another nearby room).

The second step in complying with the law is enacting a written lactation room policy governing the use of the lactation room. The policy must accomplish the following:

(1) Specify the means by which an employee may submit a request for a lactation room;

(2) Require the employer to respond to a request for a lactation room within a reasonable amount of time, not to exceed five business days;

(3)  Provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow up required;

(4) State that the employer shall provide reasonable break time for an employee to express breast milk, consistent with section 206-c of the Labor Law; and

(5) State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.

The bills were sent to Mayor DiBlasio on October 17, 2018 for signature, and once signed will become effective in 120 days. City employers should use the next few months to locate a suitable location for their lactation room, make any necessary modifications (such as adding a door lock), and prepare their policies to comply with the new law.

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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