Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On November 17, 2018, Sections 8-102 and 8-107(22) of the New York City Administrative Code were amended to require employers in New York City with four1 or more employees to (1) provide designated lactation room(s) for employees and (2) implement a lactation room accommodation policy. New York City law already prohibited discrimination based on pregnancy, childbirth, and related medical conditions and obligated employers to provide reasonable accommodations to nursing employees and to display a poster to alert employees about their rights to express milk in the workplace.2 The new amendments—which will take effect on March 18, 2019—expand on these requirements, as well as on the 2007 New York State Nursing Mothers Rights at Work Law.3
Lactation Accommodation Requirements
All covered New York City employers must have a “Lactation Room.” A “Lactation Room” is defined as “a sanitary place, other than a restroom, that can be used to express 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. In addition, the lactation room must be in reasonable proximity to the employee’s work area and the employer must provide the employee with the ability to us a refrigerator suitable for breast milk storage that is in reasonable proximity to such employee’s work area. Covered employers do not necessarily have to build an entirely new room devoted to lactation breaks; they are permitted to use an existing multipurpose room, provided that the room is reserved only for lactation during the time an employee is using it for that purpose. The employer also must provide notice to other employees that the room is given preference for use as a lactation room. If any of these requirements pose an undue hardship to the employer, the employer and the employee must engage in a cooperative dialogue.
New Lactation Policy Requirement
New York City employers also must implement a Lactation Room Accommodation Policy, and distribute it to all new hires. The new policy must:
(1) Specify the means by which an employee may submit a request for a lactation room;
(2) Require that the employer 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 pursuant to 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, as required by subdivision 28 of this section.
In the past, the City Commission on Human Rights has offered the following guidance concerning the cooperative dialogue requirement in this context:
In evaluating whether or not an employer has engaged in a cooperative dialogue in good faith with an employee, the Commission will consider various factors, including, without limitation: (1) whether the employer has a written policy for employees about how to request accommodations based on pregnancy, childbirth, or related medical condition; (2) whether the employer responded to the request in a timely manner in light of the urgency of the request; (3) whether the employer attempted to explore the existence and feasibility of alternative accommodations or alternative positions; and (4) whether the employer attempted to obstruct or delay the cooperative dialogue or in any way intimidate or deter the employee from requesting the accommodation.4
Further, as we have previously reported,5 the employer must “provide any person requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.” The New York City Commission on Human Rights will publish a model policy and request form that employers may adopt.
What are an Employer's Next Steps?
Covered employers should identify a suitable Lactation Room and revise or implement policies in accordance with the amendments to the New York City Code. Employers should also design a “request form” for employees to use and formulate a process for engaging in and documenting any cooperative dialogue.
1 While the legislative history of these amendments suggests that the City Council intended to cover only employers with at least 15 employees, Section 8-107(22) covers all employers with at least 4 employees and therefore these amendments do as well, pending further clarification.
2 A copy of the City’s recommended poster is available at: https://www1.nyc.gov/assets/cchr/downloads/pdf/publications/Pregnancy_Poster_2017.pdf.
3 N.Y. Labor Law § 206-C.
5 Eli Z. Freedberg, New York City Law Requiring Employers to Engage in a "Cooperative Dialogue" for Accommodation Requests Takes Effect October 15, 2018, Littler ASAP (Sept. 21, 2018).