If you’re a private employer in New York State, review your policies and procedures for nursing employees, because it’s likely time for an update.
Come June 7, 2023, amendments to Section 206‑c of New York’s Labor Law will become effective and create new protections for employees who need to nurse at work.
While the expansion is helpful in providing guidance and clarity on duties to nursing employees, some employers may need to make changes. New York already requires employers to provide certain protections for nursing mothers. This update continues reasonable unpaid break time up to three years following childbirth as well as employers’ obligations to make reasonable efforts to provide a private room, often called a lactation room, near an employee’s work area for the purpose of pumping.
What’s new? The changes add greater specificity and more burdens to employers. Their lactation room must be:
(1) in close proximity to the work area,
(2) well lit,
(3) shielded from view, and
(4) free from intrusion from the public or other persons in the workplace.
The lactation room must contain a chair, working surface, close access to running water, and an outlet if the workplace has electricity. The room cannot be a restroom. If the sole purpose of the room is not for expressing breastmilk, the room can’t be used by another employee at the same time.
We expect to see the State Department of Labor (DOL) issue an updated policy soon, but we haven’t seen it yet. Employers will need to provide this policy to employees upon their hire and annually. Finally, if your workplace has a refrigerator, employees must be able to store their breast milk in it.
If you’re an employer and have concerns your workplace would experience undue hardship as a result of these new requirements, you’re still expected to make reasonable efforts to provide a private area near the employee’s workplace and can’t direct employees to use the restroom or a toilet stall.
These requirements bring New York State into compliance with the recent amendments to the federal Fair Labor Standards Act – known as the PUMP for Nursing Mothers Act. Though the federal law mandates accommodations for only up to one year, it explicitly prohibits employers from using a bathroom as the lactation room – and that law is effective right now! Thus, if any New York employers are waiting until June to implement changes, you shouldn’t use a restroom as your lactation room.
Prior to the recent amendments, the New York DOL issued useful guidelines for employers on expressing breastmilk at work. Although the guidance is in more relaxed than the new law, it may be useful to employers looking to develop their best practices. The lists provided below are not an exhaustive account of the DOL’s guidelines, and employers should review § 206-c and call us to accommodate nursing employees in compliance with the new law.
Reasonable Unpaid Break Time
- Generally, break time can’t be less than 20 minutes.
- If close proximity to the employee’s work area isn’t possible, break time can’t be less 30 minutes.
- Breaks must be provided at least once every three hours if requested.
- Employers must allow employees to work before or after their normal shift to make up for time lost, so long as this falls within normal work hours.
Reasonable Efforts and Privacy
- Employers must make a reasonable effort to provide a lactation room unless it would be “significantly impracticable, inconvenient or expensive to the employer.”
- Some factors to consider in determining impracticality include (1) nature of the work performed at the business, (2) overall size and physical layout of the business, and (3) the type of business facility. See the DOL guidelines for a complete list.
- Rooms with windows must have curtains, blinds, or another window covering.
- Rooms must contain a chair and a flat surface. Employers are encouraged to (after June 7, they must) provide an outlet, clean water, and access to a refridgerator.
- Cubicles may be used as a last resort, but the wall must be at least seven feet tall, and the cubicle should be fully enclosed by a partition.
Close Proximity
- Lactation rooms must be within walking distance and shouldn’t significantly lengthen the break time.
- Office buildings or other buildings with multiple employers may cooperate to create a common lactation room under certain circumstances.
Finally, employers should be on the lookout for official policy from the New York DOL in the coming months – you can be sure we’ll be looking for it and reporting on it when it’s issued.
Because the current DOL guidelines aren’t in sync with the recent amendments and § 206-c has notice requirements, there will likely be a new policy from the DOL soon. Although these updated requirements likely may prove challenging to many employers – especially small businesses – providing a compliant environment for mothers returning to work ensures employees remain happy and healthy.
If you have questions about this or any other employment policy, we can help. Reach out to The Coppola Firm by email (info@coppolalegal.com), phone (716.839.9700), or stop by our conveniently-located office on Maple Road in Buffalo.
