In a prior post, we discussed how to draft a lactation break policy to accommodate nursing mothers and comply with federal and New York state law. Come March 18, NYC will place two additional obligations on NYC employers. The new obligations build upon existing New York state law, which currently requires covered employers to provide reasonable unpaid break time to nursing mothers to express breast milk and to make “reasonable efforts” to provide a room or other location where an employee can express breast milk in privacy. NYC employers will now be required to provide a suitable lactation room to nursing mothers and implement a written lactation room policy.
What Constitutes a Suitable Lactation Room?
Under the new laws, a suitable lactation room is one that:
- Is in a sanitary place (other than a restroom) where employees can express breast milk shielded from view and free from intrusion,
- Includes an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items (ideally and practically, all within close proximity to one another),
- Has nearby access to running water, and
- Is in reasonable proximity to the employee’s workspace.
In addition, a refrigerator suitable for breast milk storage must be in reasonable proximity to the employee’s workspace.
Employers are not required to provide a dedicated lactation room, but if the room is also to be used for other purposes, its sole function must be as a lactation room while an employee is using it to express milk. Employers must notify other employees that the room is given preference for use as a lactation room whenever an employee is using it for that purpose.
If providing a lactation room poses an “undue hardship” for an employer, the employer must engage in a “cooperative dialogue” with the employee to determine what, if any, alternative accommodations might be available to the employee.
What Topics Must the Lactation Room Policy Address?
Under the new laws, the written lactation room policy must notify employees that they have the right to a lactation room and describe the process by which employees may request use of the room from the employer. The process must:
- Specify the means by which an employee may submit a request for a lactation room;
- Require that the employer respond to a request for a lactation room within a reasonable amount of time (not to exceed five business days);
- Provide a procedure to follow when two or more individuals need to use the room at the same time, including contact information for any required follow up;
- State that the employer shall provide reasonable break time for an employee to express breast milk pursuant to Section 206-c of the New York State Labor Law; and
- State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue with the employee, as described above.
Employers must provide a copy of the written policy to all new hires.
Stay tuned for developments from the New York City Commission on Human Rights and the New York City Department of Health and Mental Hygiene, which will be collaborating with one another to release a model lactation room policy and model lactation room request form to aid employers in complying with these new obligations.