On December 9, 2022, Governor Kathy Hochul signed into law updates to New York State’s Nursing Mothers in the Workplace Act, which went into effect on June 7, 2023. Many of these revisions bring the State’s law more in line with the more comprehensive lactation accommodations law enacted by New York City in 2018. Unlike the City law, however, the State’s law goes a step further with respect to the requirements for notifying employees of their rights – thus, even those who are familiar with the City’s law need to take notice of these changes.
Break Time
Both the state and city laws require that employers provide reasonable break time each day for an employee to express breast milk for her nursing child for a period of up to three years.
The law permits employees to take breaks at least once every three hours to pump breast milk, however if more frequent breaks are needed the employer must accommodate the request. An employer cannot require an employee to make up this break time.
Employers do not have to pay employees for the break time they take to pump breast milk. Employees have the option of using any regularly provided paid break and that time must be paid, even if the employee is using it for breast milk expression. Employees may also use their regular meal time to pump breast milk, but they are not required to do so. Employers must continue to pay any customarily paid regular break time for an employee who pumps breast milk. Employers cannot require an employee to complete work tasks while expressing breast milk, however, if an employee voluntarily decides to do so, the employer must compensate the employee for the time.
Break Room
Both laws also require that employers make reasonable efforts to provide a private room or other location for the purposes of expressing breast milk – however, prior to the recent updates, all the State law required was access to a private space that was not a rest room. With the recent changes, the room must largely meet the criteria specified by the City law. Specifically, the room must be close to the employee’s work area, well lit, shielded from view, and free from intrusion. It must have a chair, a working surface, an electrical outlet, and access to running water and refrigeration (the water and refrigeration can be in another nearby room).
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 (it need not be a lactation room 24/7), 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 door should have a lock, and any windows should have window coverings.
Written Policy Requirements
Lastly, both the State and City laws require that employers maintain written policies governing lactation breaks. The City merely requires that employers create and adopt a policy consistent with its law. The State, on the other hand, has developed and issued a model policy (available on its website), which New York employers are now required to issue to employees upon hire, on a yearly basis thereafter, and upon return to work following the birth of a child.
Summary
Employers located in the City of New York who are already familiar with and compliant with the City’s lactation law should download the State’s new model policy as soon as possible, distribute it to existing employees, and add it to the company’s existing hiring package. For those City employers who are not compliant with the law, and those employers located outside the City who will soon be covered by the State’s law, now is likewise the time to distribute the model policy, and also plan for a lactation space that meets the law’s requirements.
Both of these laws prohibit employers from discriminating against employees who choose to express breast milk in the workplace and provide penalties for those who violate the law. As always if you need guidance complying with workplace laws, I recommend you speak with your attorneys or human resources professionals.
