As of 2017, the New York State Nursing Mothers Act requires New York State employers to provide paid or unpaid daily express breaks for up to three years after a child is born and provide a room for expressing milk, in privacy, close to the employee’s workplace. On December 9, 2022, Governor Kathy Hochul signed legislation, effective June 7, 2023, to clarify these obligations. New York City employers will be familiar with many of these clarifications, as they generally accompany the requirements set forth in the New York City Lactation Accommodations Act of 2018 previously reported here. But New York state law is different in several important ways.
Similar to New York City law, the state amendment provides detailed requirements for the designated lactation room. Specifically, at the request of an employee, employers must designate a room or location for an employee to express breast milk that is (i) close to their work area; (ii) well lit; (iii) protected from view; and (iv) free from intrusion into the workplace by others or the public. In addition, the room must contain, at a minimum, a chair, a work surface, close access to clean running water and, if the workplace has electricity, an electrical outlet. The room cannot be a bathroom or toilet. If the function of the room is not exclusively dedicated to lactation, it must be made available to the nursing mother when necessary and cannot be used for any other purpose while being used by a worker to express milk. Employers must notify all employees when the room is designated for lactation. An employer must also provide access to refrigeration to store milk, if the workplace has access to refrigeration. Finally, the amendment clarifies that the nursing mother has the right to interrupt lactation “whenever such employee has a reasonable need to express breast milk”.
Employers are not required to comply to the extent that these requirements are impracticable because they would impose an “undue hardship” on the employer, causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. However, employers must still make reasonable efforts to provide an alternate location (other than a bathroom or shower stall) where an employee can express breast milk in privacy. Please note that if providing a nursing room would cause undue hardship, New York City law only requires a “cooperative dialogue” with the employee to identify suitable accommodation that meets your needs.
Unlike New York City law, which only applies to New York City employers with four or more employees, state law applies to employers of any size in the state of New York. In addition, the state amendment requires employers to provide employees with the Department of Labor’s (forthcoming) written policy on the rights of breastfeeding mothers to express breast milk in the workplace, both upon hiring and annually thereafter. , and employees returning to work after the birth of a child. New York City law only requires that employees create and provide their own policy consistent with city law.
New York State employers must ensure that their statewide workplaces comply with these new lactation accommodation obligations by June 6, 2023 and must establish internal protocols to comply with the policy’s reporting requirements. The new state amendment also serves as a reminder to New York City employers of existing obligations under city law in addition to new state requirements.