It is a new year, and there are new requirements in New York and on the federal level for employers to accommodate employees expressing milk following the birth of a child.

New York

In December, New York passed a law that imposes new obligations on employers providing lactation accommodations. The law amends the Nursing Mothers in the Workplace Act, which is part of the New York Labor Law, and goes into effect on June 7, 2023. The law covers all public and private employers in New York state, regardless of the size or nature of their business. 

Note that this change is at the New York state level. Little will change for New York City employers because these changes at the state level largely mirror New York City’s 2018 lactation accommodation requirements.

Since 2007 in New York state, employers have been required to provide employees with reasonable unpaid break time, or allow employees to use paid rest periods or meal breaks, to express milk for up to three years following the birth of a child. Employers also have to make reasonable efforts to provide a room or some other location in close proximity to the work area where an employee can express milk in privacy.

Under the new requirements, New York employers must still let nursing employees use paid break time or meal time to express breast milk. 

However, the new amendments provide that employers must designate a room or other location for the employee to express breast milk, and the room or other location must be a place 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 in the workplace or the public. The room has to have at least a chair, a working surface, nearby access to clean running water, and if the workplace is supplied with electricity, an electrical outlet. It cannot be a restroom or a toilet stall. 

If the sole purpose or function of the room or other location is not dedicated for use by employees to express breast milk, that area needs to be made available to a nursing employee when needed and cannot be used for any other purpose or function while in use by the employee. Employers have to provide notice to all employees as soon as practicable when such room or other location has been designated for use by employees to express breast milk.

There is an undue hardship portion of the amendments – if requirements would impose an undue hardship by causing “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 an area other than a restroom or toilet stall in close proximity to the work area where an employee can express breast milk in privacy. 

The Commissioner will be issuing a written policy about the rights of nursing employees, and employers will be required to provide that policy to each employee upon hire and annually thereafter, and to any employees upon returning to work following the birth of a child. 

Federal

There is also a recent development on lactation accommodation requirements at the federal level. 

Section 7 of the Fair Labor Standards Act requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child’s birth each time the employee has a need to. 

On December 29, 2022, President Biden signed the Fiscal Year 2023 Omnibus Spending Bill into law, which includes the PUMP for Nursing Mothers Act. This Act clarifies that employees who pump while they are working must be paid for that time. For instance, if an employee is working at their desk and pumping simultaneously, that would not be considered an unpaid break and they must be compensated for that time. 

The federal law applies to companies with more than 50 employees, and there are expanded sections detailing how this works for employees of air carriers and rail carriers.

Takeaways

Employers in New York should make sure their handbooks are up to date with the new requirements, and all employers throughout the country should ensure they are paying employees for the time they are working and expressing milk simultaneously.