New York City has adopted two new laws, Int. No. 879-A and Int. No. 905-A, that place additional obligations on employers to accommodate employees who choose to express milk in the workplace. The laws, both of which go into effect on March 18, 2019, 120 days after they became law, require employers to provide a suitable lactation room for employees and implement a written policy detailing employees' rights to the lactation room and the process for requesting use of the room.
Private Lactation Room Now Required
Previously, New York City lactation laws required only that employers make "reasonable efforts" to provide employees a private location for purposes of expressing milk. The recently enacted laws now place an additional affirmative obligation on employers, requiring they provide a suitable "lactation room" for employees who choose to express milk in the workplace. Under the new laws, the lactation room must be "a sanitary place, other than a restroom, where employees can express breast milk shielded from view and free from intrusion." At a minimum, the lactation room must have nearby access to running water and include an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. Moreover, both the lactation room and a refrigerator "suitable for breast milk storage" must be in "reasonable proximity" to the employee's workspace.
Although the new laws allow an employer to designate a room that also is used for other purposes, its sole function must be as a lactation room while an employee is using it to express milk. If an employee is using the room to express milk, the employer must notify other employees that "the room is given preference for use as a lactation room."
If providing a lactation room poses an "undue hardship" for an employer, the employer must engage in a "cooperative dialogue" with the employee to determine what, if any, accommodations might be available. At this point, there is no guidance as to how undue hardship will be assessed, but if the relevant agencies import the interpretation given that term under the New York City Human Rights Law, one can expect it will be a high standard.
While the New York City Council's summary of the law states it applies to employers with 15 or more employees, the text of the law itself is silent regarding employee thresholds. Future guidance may clarify whether smaller employers are covered by the law.
Lactation Room Policy Now Required
Under the new laws, employers are also now required to implement a written lactation room policy notifying employees that they have the right to a lactation room and describing the process by which employees may request use of the lactation room.
The process for requesting the use of a lactation room must
- specify the means by which an employee may submit a request for a lactation room;
- require that the employer respond to a request for a lactation room within a reasonable amount of time, not to exceed five business days;
- 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;
- state that the employer shall provide reasonable break time for an employee to express breast milk pursuant to Section 206-c of the Labor Law; and
- state that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.
The laws require that employers provide a copy of the written policy to all new hires but are silent with respect to posting requirements and requirements for distribution to current employees.
To assist employers in complying with these new obligations, the New York City Commission on Human Rights, in collaboration with the Department of Health and Mental Hygiene, will be releasing a model lactation room accommodation policy and model lactation room request form, which will be available on their website. Moreover, we expect the commission will release guidance regarding compliance in the near future, as specifically contemplated by the new laws.
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Employers in New York City should immediately evaluate their workplace to determine what space would be suitable as a lactation room that meets the criteria established under the new laws. Additionally, employers should review and revise current policies to ensure compliance with the new laws' requirements — including revising any existing policies relating to employees expressing breast milk and accommodation requests. Employers are encouraged to speak with their counsel to ensure compliance with these new obligations.
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