On June 7th, 2023, amendments to New York State's Nursing Mothers in the Workplace Act (the "Act") took effect. The New York State Department of Labor ("NYSDOL") published a model breast milk expression in the workplace policy (the "Model Policy") to aid employers in complying with the Act. In short, the amendments require employers to grant employees unpaid breaks for breastmilk expression and in a designated space that is free from interruption.
Employers are now required to provide reasonable unpaid break time for their employees to express breast milk. The unpaid break time must be provided at least every three hours if requested by the employee and the breaks must be at least twenty (20) minutes if the designated area to express breast milk is near the employee's work space. If the designated area for expressing breast milk is far from the employee's workspace, they must be provided up to thirty (30) minutes of unpaid break time. This unpaid break time must be provided for up to three years after childbirth. This differs from the federal PUMP for Nursing Mothers Act which only requires employers to provide unpaid break time up to one year after child birth.
Employees must also be allowed to use their paid break time or meal time to express milk. An employee may also choose to work while expressing breast milk but an employer cannot mandate them to work. Further, an employee is not required to make up their unpaid break time but must be permitted to make the time up before or after their normal shift so long as the time falls within the employer's normal work hours.
The provisions of the Act also apply to remote workers as well. Though employers are not responsible for designating a space for remote employees to express breast milk they are still responsible for providing remote workers with breaks.
At a minimum, an employer must provide nursing employees expressing breast milk with a designated area that includes:
- A chair,
- A working surface (ie. A desk, table, counter, or other flat surface),
- Nearby access to clean running water,
- An electrical outlet (if the workplace has electricity),
- Curtains, blinds, or other covering over any window in the space, and
- A door equipped with a functional lock and if that is not possible, a sign advising the space is in use and not accessible to others.
The space cannot be a restroom or a toilet stall and must be maintained and clean at all times. Additionally, if the employer has a refrigerator, the employee must be permitted to use it to store breast milk. Employers, however, are not responsible for ensuring the safekeeping of the breast milk stored in the refrigerator.
Additionally, the location of the designated area must at a minimum be:
- In close proximity to the employees work area,
- Well lit,
- Shielded from view, and
- Free from intrusion from other people in the workplace or the public.
There does not need to be a separate space for every nursing employee as an employer is permitted to designate a central location for breast milk expression.
If an employer can demonstrate undue hardship in providing a space within the requirements of the Act, the employer must still provide a location other than a restroom or a toilet stall that meets as many of the requirements as possible. Undue hardship is defined as: "causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business." Regardless of the hardship, an employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location for them to do so.
If an employee wants to express breast milk at work, they need to give their employer "reasonable" written advance notice which is generally providing written notice before returning to work after being on leave. An employee requesting unpaid breaks for nursing must submit their written notice to their direct supervisor or the designated individual responsible for processing such requests under the specific employers' policy. The employer must then respond within 5 business days and notify all employees in writing (can be email or printed memo) when an area is designated and where it is located.
Employers must also implement a written policy regarding the rights of nursing employees to express breast milk in the workplace pursuant to the Act. Employees need to be provided with the implemented written policy upon hire and annually thereafter. Upon returning to work following the birth of a child, the returning employee must also be provided with the policy.
The Act ends by expressly prohibiting discrimination against an employee because that employee has made a request under the Act.
For further information regarding the New York State Nursing Mothers in the Workplace Act, please contact Laura L. Spring, Esq. at CCBLaw.