New York City passed two new laws to expand employer obligations with regard to nursing mothers. Effective March 18, 2019, New York City employers with four (4) or more employees will be required to comply with the requirements set forth by these new laws. Pursuant to these laws, an employer must provide a lactation room for nursing mothers upon request (if it would not impose an undue burden upon the employer) and issue a written lactation room policy.
Lactation Room Requirements
Under Int. No. 879-A, covered New York City employers must make a lactation room available for nursing mothers upon request within “reasonable proximity” to the employee’s work area. A “lactation room” is defined as a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion. The room must also include a chair, an electric outlet, a surface on which to place personal items, and nearby access to running water. In addition, employers are now also required to provide a refrigerator suitable for breast milk storage in “reasonable proximity” to the employee’s work area.
While an employee is using the lactation room to express breast milk, the law requires that the room cannot be used for other purposes. However, when the room is not in use by a nursing mother, the room may be used for alternative purposes. If an employer would like to use the lactation room for multiple purposes, notice must be given that employees who wish to use the room for lactation purposes will be given first priority.
If providing a lactation room would pose an undue hardship, employers must still engage in an interactive process with the employee to find another suitable accommodation. Once this interactive process is complete, the employer must issue a written determination of what accommodations will be granted or denied. Pursuant to previous court decisions and prior guidance issued by the New York City Commission on Human Rights (the “Commission”), employers should beware that it will be difficult to establish that providing a lactation room is an undue burden.
Lactation Policy Requirements
According to Int. No. 905-A, employers are also required to enact a written lactation room policy that must:
- Describe how an employee can submit a request for a lactation room;
- State that the employer will respond to such a request within five (5) business days of receipt of the request;
- Set forth a procedure to apply to situations where two or more employees need to use the lactation room at the same time;
- Provide that the employer will allow employees to take reasonable breaks to express breast milk pursuant to Section 206-c of the New York State Labor Law; and
- State that if the request for a lactation room imposes an undue burden on the employer, the employer shall engage in a cooperative dialogue with the employee.
Employers are required to distribute these policies to all employees upon hire and should also incorporate the policies into their respective employee handbooks. The Commission will create a model lactation room policy and lactation room request forms for employers to use as a template.
In light of the quickly approaching effective date of the new laws, covered New York City employers should review their current lactation and accommodation policies to ensure compliance with these laws. If an employer does not already provide its employees with a lactation room that meets the requirements set forth above, the employer should begin taking steps to provide such a room. Any employer who believes providing a lactation room may impose an undue burden should consult with counsel.