Effective June 7, 2023, the New York Labor Law will be amended to expand workplace protections for nursing employees. The new law builds upon already-existing requirements under the Labor Law to provide reasonable break time to express breastmilk in the workplace and to “make reasonable efforts” to provide a location to express breastmilk in private.

The law applies to all public and private employers in New York State, regardless of their size or the nature of their business. Employers cannot terminate, threaten, penalize, or otherwise discriminate or retaliate against employees who exercise their rights under this law.

The Fair Labor Standards Act, a federal law, also protects a nursing employee’s right to pump breastmilk at work.

Breaks to Express Breastmilk

The amended law requires employers to allow employees to express breastmilk each time there is a reasonable need to do so for up to three years after childbirth. Employees who want to pump breastmilk at work must notify their employer in advance, preferably before returning from maternity leave.

Employers must give nursing employees at least 20 minutes for each break but must allow more time if the employee needs it. The employee can take shorter breaks if they choose to do so. Breaks are allowed at least one every three hours and can be taken right before or after a regularly scheduled paid break or meal period.

The employer does not have to pay the employee for breaks to pump breastmilk; however, an employee may use regular paid break or mealtime to pump. The employer must let the employee work before or after their normal shift to make up for the break time, if this time falls within the employer’s normal work hours.

In short, there are no exceptions to an employer’s obligation to provide either reasonable unpaid break time or paid break or mealtime for employees to express breastmilk. Employers should respond promptly to any questions or requests from employees related to this law.

A Designated Room for Expressing Breastmilk

The law also requires employers to designate a room or other location for an employee to express breastmilk in the workplace upon the nursing employee’s request.

The room cannot be a restroom or toilet stall. It must be: (1) near the employee’s 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 must also have a chair, a working surface, nearby access to clean running water and, if the workplace has electricity, an electrical outlet. If the workplace has access to a refrigerator, employees must be permitted to access the refrigerator to store expressed milk.

The room must be available when needed and may not be used for any other purpose while in use by the nursing employee. Employers must provide notice to all employees as soon as practicable when a room as been designated for employees to express breastmilk.

If complying with the above requirements would cause an undue hardship, the employer must still make reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area, for an employee to express breastmilk in privacy.

Written Policy Required

Employers must maintain a written policy regarding the rights of nursing employees. The policy must (1) inform employees of their rights under the law; (2) specify how an employee may submit a request for a room to express breast milk; and (3) require the employer to respond within five business days. Employers must provide the policy to all employees upon hire, annually thereafter, and to employees upon return to work after childbirth.

The New York State Department of Labor is expected to issue a model written policy.

Practical Advice

Employers should review their Employee Handbook to ensure it accurately reflects the rights of nursing employees. They should also obtain and distribute the written policy once issued by the New York State Department of Labor. They should plan ahead and determine whether they can provide a compliant space to express breastmilk upon an employee’s request.

Employees who believe an employer is violating their rights under this law can file a confidential complaint with the New York State Department of Labor’s Division of Labor Standards.

If you have questions about this law or other labor and employment related matters, please contact us.

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