Key Takeaways:

• New York expands employee lactation accommodation rights

• Employers must develop and implement a written policy regarding employee rights

• The law goes into effect June 7, 2023

On Dec. 9, Gov. Kathy Hochul signed bill (A1236/S4844B) into law, which goes into effect June 7, 2023.

The law amends New York Labor Law Section 206-c requiring employers to provide reasonable unpaid break time to allow an employee to express breast milk for her nursing child. The amendment largely tracks the lactation accommodation requirements that already exist in New York City.

The amendment requires employers, upon request, to designate a room or other private location in the workplace for employees that are nursing to express or pump breast milk.  Specifically, the room or other location must be in a place that is 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. The room or other location must also provide, at minimum, a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. A restroom or toilet is not sufficient.  Employers must provide notice to all employees, as soon as practicable, when the room or other location has been designated for use by employees to express breast milk.

If an employer is unable to provide access to a room or location that meets the above-mentioned specifications, because it would create an undue hardship on the employer, the employer is still required to make reasonable efforts to provide a similar option for the employee. While “undue hardship” is not defined in the law, it is a relatively high standard as used in other employment laws, such as reasonable accommodations under the Americans with Disabilities Act.

The law also requires that if the workplace has access to refrigeration, the employer extend such access to refrigeration for the purposes of storing the expressed milk.

The new law also requires employers to adopt a policy that will be developed by the New York State Department of Labor, detailing employee rights for breastfeeding in the workplace. The policy has certain mandatory components, including informing employees of their rights under the law, specifying 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 requiring the employer to respond to such requests within a reasonable timeframe, but not to exceed five business days. Employers must provide the written policy to each employee upon hire and annually thereafter, as well as to employees returning to work after the birth of a child.

As with any employment related policy, the law also includes a robust anti-retaliation provision.

Although the law does not take effect until June 7, 2023, employers are advised to review their employment handbooks and policies, to incorporate this law into its accommodation forms (or create new standalone forms), and to alert managers and internal stakeholders on the amendment to the law.

For more information or immediate guidance, contact:

• Christopher P. Maugans
• Joseph S. Brown
• Scott R. Green
• Caroline J. Berdzik
• Or another member of the Employment and Labor practice