As of June 7, 2023, New York Labor Law amendments require employers to make additional accommodations for nursing mothers. All New York employers must now adopt the “Policy on the Rights of Employees to Express Breast Milk in the Workplace” that was drafted by the New York State Department of Labor. Unlike other “model” policies created by the DOL, employers must adopt the State’s nursing mothers policy in its entirety.

Original NYS Nursing Mothers Law

In 2007, the New York State Legislature enacted Section 206-c of the Labor Law to require that:

An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity, to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.

2023 Amendments

The recent amendments significantly expand employers’ obligations under Labor Law Section 206-c in several respects.

Time

Instead of granting “reasonable” time “each day,” the law now permits an employee to take time off “each time [she] has reasonable need to express breast milk.” Employers still have discretion in whether this is paid or unpaid time.

The DOL policy clarifies that “Employers must provide unpaid break time at least every three hours if requested by the employee.” Yet, it also indicates “the number of unpaid breaks an employee will need to express breast milk is unique to each employee and employers must provide reasonable break times based on the individual.”

Similarly, the policy suggests employers must allow breaks of at least 20 minutes each, but also says the employees may take more or less time at their option if needed.

In addition, the State’s policy requires employers to allow employees to work before or after their regular shift to make up any time used as an unpaid break time to express breast milk, if such time exists within the employer’s normal operating hours. However, employees cannot be required to make up unpaid break time.

Place

The law previously required employers to “make reasonable efforts” to provide a private area for employees to express breast milk. The amendments now require most employers to provide a room that satisfies specific conditions.

Such “room or other location” must be

• in close proximity to the work area;
• well lit;
• shielded from view; and
• free from intrusion from other persons in the workplace or the public.

This location must also feature

• a chair;
• a working surface;
• nearby access to clean running water; and
• an electrical outlet.

The law now specifies that a restroom or toilet stall will not satisfy these requirements.

If the employer uses the designated room or location for other purposes, it must be made available to the nursing mother when needed and cannot be used for any other purpose while being used for expressing breast milk.

Refrigeration

If there is a refrigerator in the workplace, nursing mothers must be allowed to store breast milk expressed at work.

Exceptions

While the amendments acknowledge that some employers may not be able to satisfy all of the above conditions, the permissible exceptions from full compliance are limited.

If meeting all the requirements would impose an undue hardship, the employer is still expected to “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 where an employee can express breast milk in privacy.”

Undue hardship will only exist if compliance is determined to cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

The DOL policy addresses accommodations for nursing mothers in shared work areas and workplaces with no separate rooms. For example, there are specific criteria for using cubicles to meet these requirements as a last resort.

In any event, employers may not deny employees the right to express breast milk at work due to “difficulty in finding a location.”

Nursing Mothers Policy

All employers with at least one employee working in New York must provide the written nursing mothers policy prepared by the DOL to every employee both upon hire and annually.

You must also give the policy to an employee who returns to work after giving birth.

In much more detail, the policy is designed to:

• inform employees of their rights under the law;
• specify the means by which a request may be submitted to the employer for a room or other location for use by employees to express breast milk; and
• require the employer to respond to such request within a reasonable timeframe not to exceed five business days.

The required policy is available for download here.

Employee Requests

The DOL acknowledges that employers do not have to maintain an appropriate lactation room at all times. Instead, employees must give employers reasonable advance, written notice of the need to express breast milk at work. Usually, this should occur before the employee returns to work following childbirth.

The policy states, “Employers must notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.”

New York Employers Must Act Now

As the new policy confirms, this law “applies to all public and private employers in New York State, regardless of size or the nature of their business.” If you have not already implemented it, you should do so now. The Department of Labor suggests that their policy “is the minimum required standard, but employers are encouraged to include additional accommodations tailored to their workplace.” That should not be interpreted to permit employers to adopt an alternative policy, but you could supplement the State’s policy with additional information.

If you are struggling to find a suitable location for nursing mothers to express breast milk in your workplace, please consult with an experienced employment attorney before concluding that you are entitled to an exemption.

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