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 December 9, 2022, New York State amended the Nursing Mothers in the Workplace Act to provide additional specifications for lactation rooms and to impose new written policy requirements on all employers. The new requirements will take effect on June 7, 2023. Little will change for New York City employers, as the state’s amendments largely mirror New York City’s 2018 lactation accommodation requirements.1
Existing Lactation Accommodation Requirements
Since 2007, New York State has required that employers either provide reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk up to three years following the birth of a child.2 Employers must also provide a room or alternative location for employees to express milk in private.
How often and for how long may employees take breaks to express milk?
Under the state’s existing guidance, employers are required to give employees at least 20 minutes at a time to pump breast milk and additional time if needed.3 Employees can take breaks at least once every three hours to pump breast milk and can also take breaks right before or after scheduled paid rest periods or meal breaks. The amended law now provides that employees may take breaks “each time such employee has reasonable need to express breast milk” for up to three years following childbirth.
What will change under the new amendments?
Employers already must provide a lactation room or location in close proximity to an employee’s work area. Under the new law, employers must provide a location for employees to express milk that is: (1) in close proximity to the work area; (2) well lit; (3) shielded from view; and (4) free from intrusion from other persons. The designated room or location cannot be a restroom or toilet stall.
The designated location must include the following: (1) a chair; (2) a working surface; (3) nearby access to clean running water; and, if the workplace has electricity, (4) an electrical outlet. Additionally, if the employer’s workplace has access to refrigeration, employees must be allowed access to refrigeration to store pumped milk. Under the pre-amendment act, the New York State Department of Labor “encourage[d]” but did not require access to clean water, an electrical outlet, or refrigeration.
May an employer designate a room for lactation that serves other purposes?
Yes. However, if the designated room or location is not reserved solely for lactation, employers must prioritize lactation and make the location available whenever an employee needs to use it to express milk; that room or location cannot be used for any other purpose while an employee is there to express milk.
Employers must also provide notice to all employees as soon as practicable when a lactation room or location has been designated.
Are there exceptions to the new requirements for lactation accommodations?
If the lactation room requirement imposes an undue hardship on an employer, i.e., “significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business,” the employer must make reasonable efforts to provide a room or location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express milk in private. Employers concerned that the state requirements may impose an undue burden should seek advice before denying accommodations. New York City employers should also take note of their obligations under the New York City Administrative Code to provide lactation accommodations and to engage in the cooperate dialogue process with an employee.
What lactation policy must employers implement?
The amended law requires employers to adopt a lactation accommodation policy, which must be distributed to each employee upon hire and to employees returning to work following childbirth. Employers must also distribute the policy to all employees annually.
The policy must inform employees of their rights under the Act, specify the means and/or procedures by which employees may request a room or location to pump breast milk, and require employers to respond within five business days to an employee’s request for a room or location to express milk.
The amendments also expressly prohibit employers from retaliating against employees for exercising their rights under the statute.
Finally, the amendments require the New York State Department of Labor to develop a model written policy. Employers should plan to review that model policy once it becomes available and adopt it or update any existing policies to conform to the new requirements.
1 Unlike the New York City version, which applies only to employers with four or more employees (New York City Administrative Code § 8-107(22)), New York State’s law applies to all employers.
2 New York Labor Law § 206-c.
3 Frequently Asked Questions, available at Nursing Mothers in the Workplace | Department of Labor (ny.gov).