Employers in New York City will likely soon face more stringent laws related to nursing mothers expressing milk in the workplace. On Oct. 17, 2018, the New York City Council passed a package of bills, dubbed the Mother's Day bills, aimed at helping mothers and children. The City Council noted working mothers typically find breastfeeding to be a significant barrier in returning to work after childbirth. Accordingly, two of the bills, Int. 879-A and Int. 905-A, amend the New York City Human Rights law to require employers to (1) accommodate nursing mothers by providing a lactation room, and (2) implement a written lactation room policy. The newly passed legislation awaits Mayor de Blasio's signature; he is expected to sign the suite of bills. If enacted, the new workplace lactation laws will take effect 120 days after signing.

Current New York State Law

New York state has safeguarded nursing mothers' rights with respect to lactation in the workplace for over a decade. In 2007, New York state enacted a law that grants nursing mothers the right to express breast milk at work, which applies to all public and private employers in the state, regardless of the size or nature of the business. New York Labor Law (NYLL) §206-c requires employers to provide reasonable unpaid break time or permit the use of paid break time to allow an employee to express breast milk, for up to three years following child birth. Additionally, NYLL §206-c requires employers to make “reasonable efforts” to provide a room or other location where an employee can express breast milk in privacy. This room should be in close proximity to the employee's work area.

The New York State Department of Labor has promulgated detailed guidelines regarding this law. Pursuant to the guidelines, employers must provide written notification to employees returning to work following the birth of a child of their right to take unpaid leave for the purpose of expressing breast milk. The guidelines clarify that “reasonable unpaid break time” generally means a break of no less than 20 minutes, or no less than 30 minutes should the location to express breast milk not be in close proximity to the employee's work station. The guidelines further provide the room or location provided by the employer for nursing mothers to express breast milk cannot be a restroom or a toilet stall and must contain, at a minimum, a chair and small table, desk, counter or other flat surface. Employers are also encouraged to provide an outlet, clean water supply and access to a refrigerator for storing expressed milk. Finally, the guidelines clarify that “reasonable efforts” to provide a location to express breast milk means the employer must provide a space so long as it is neither significantly impractical, inconvenient or expensive for the employer to do so, based on factors including the nature of the work performed at the business, the size, layout and type of facility of the employer's worksite, the size and composition of the workforce, the business's hours of operation and normal employee work shifts, and the relative cost of providing a room or other space for the dedicated purpose.

In 2009, New York state enacted Public Health Law (PHL) §2505-a, which provided a detailed “Breastfeeding Mothers' Bill of Rights,” which mostly addressed rights with respect to mothers and expectant mothers have when dealing with health care providers or other medical facilities. In 2015, PHL 2505-a was amended such that the Breastfeeding Mothers' Bill of Rights now advises nursing mothers of their rights to express breastmilk in the workplace under NYLL 206-c.

New York City Legislation

The two bills recently passed by the New York City Council dovetail on the existing state laws regarding breastfeeding in the workplace. In a committee report regarding the legislation, it was noted that some employers may be exempt from the state law if it would be too expensive or difficult to provide a lactation space because of the size, layout, cost or nature of the employer's work. Thus, in passing Int. 879-A and Int. 905-A, the City Council is striving to provide more expansive requirements than the state law.

Lactation Room. If signed by Mayor de Blasio, the first bill, Int. 879-A, will require New York City employers to provide lactation rooms in the workplace. Employers will be required to provide employees needing to express breast milk with a lactation room in reasonable proximity to the employee's work area, as well as a refrigerator suitable for breast milk storage. The lactation room must be a private and sanitary place, other than a restroom, that includes, at a minimum, an electrical outlet, a chair, a surface on which to place a breast pump and other personal items and nearby access to running water. If the room designated by the employer to serve as a lactation room is also used for another purpose, the sole function of the room shall be as a lactation room while an employee uses it to express breast milk. If providing a lactation room poses an undue hardship on the employer, the employer must nevertheless engage in a cooperative dialogue with the employee to determine what, if any, alternative accommodations may be available.

Although a summary of the bill states the lactation room mandate applies only to employers with 15 or more employees, the text of the bill itself does not include this employee threshold, which was seemingly deleted from an earlier version of the bill. Accordingly, if enacted, employers will need further guidance as to the applicability of a 15- employee threshold.

Lactation Room Policy. The second bill, Int. 905-A, would require employers to develop and implement a written policy regarding the provision of a lactation room, to be distributed to all employees at time of hire. The policy will need to include a statement that employees have a right to request a lactation room and identify the process by which employees may request a lactation room. This process must: (1) specify the means by which an employee may submit a request for a lactation room; (2) require the employer to respond to the request within a reasonable amount of time, not to exceed five business days; (3) provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow up required; (4) state the employer shall provide reasonable break time for the employee to express breast milk pursuant to NYLL 206-c; and (5) state that if the request for a lactation room poses an undue hardship on the employer, the employer will engage in a cooperative dialogue with the employee to discuss any available alternative accommodations. The bill further requires the New York City Commission of Human Rights, in collaboration with the Department of Health and Mental Hygiene, to develop a model lactation room accommodation policy and a model lactation room request form.

Employers Should Prepare Now

Int. 879-A and Int. 905-A have been sent to the Mayor and await his signature. Although the laws will not take effect until 120 days after the Mayor signs them into law, employers in New York City need to take stock of their worksites now to determine where to set up a lactation room. Additionally, employers should begin reviewing their current policies. Employers must be prepared to implement a lactation room policy to distribute to employees in compliance with the bill's requirements.

Melissa Osipoff is a partner in the New York office of Fisher Phillips, a national labor and employment law firm.