New York employers will have to provide expanded accommodations for working mothers later this year. Governor Kathy Hochul recently signed legislation that requires all employers to provide a convenient and private space for pumping.
Previously, employers in the Empire State only had to provide breaks for expressing milk and make reasonable efforts to provide a space for employees to pump breast milk. That standard for private employers, however, fell below the compliance requirements for government employers. That is according to a statement from the Governor’s office.
The increased requirements for New York employers will bring private employers in line with government employers, the governor’s office said.
Little will change for employers in New York City because the state action closely mirrors the Big Apple’s lactation accommodation requirements, according to Littler Mendelson P.C. attorney Devjani Mishra.
The state law requirements go into effect on June 7, 2023. The governor signed the legislation on Dec. 9, 2022.
Who must comply with New York’s lactation laws?
All employers in the state of New York must comply with the state law.
What must employers do to comply with laws for nursing mothers?
Employers already must provide a lactation room or location in close proximity to an employee’s work area under a state law that has been in place since 2007.
The new measure provides more specifics. It requires that private employers designate a room or other location that is not a restroom or toilet stall for employees to express breast milk.
The lactation room must meet certain specifications. The room must be:
- Well lit
- Shielded from view
- Close to the work area
- Free from the intrusions of others in the workplace or the public
The room must be supplied with certain items:
- A chair
- A working space
- Access to clean running water
- An electrical outlet if the workplace has electricity
- A refrigerator for storing expressed milk if the workplace has access to refrigeration
The lactation room doesn’t have to be dedicated only to the purpose of allowing nursing employees to express milk. However, the room must be available for that purpose when needed. It cannot be used for any other reason while being used by nursing working mothers.
Employers must adopt a written lactation policy
The new measure also requires that employers adopt a written lactation policy developed by the New York State Department of Labor. The written policy must be provided to each employee:
- Upon hire
- Once a year
- Upon return from maternity leave
Are there employer exceptions for compliance?
The state law provides a carve out for compliance. Like many similar laws, it has an “undue hardship” exception. As a result, following the law is not required in instances where it would be “impracticable because it would impose an undue hardship on the employer by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
Mishra noted that, apart from the exemption not being clear, “it is rarely the case that an employer” can reasonably claim that providing an accommodation for a nursing worker is a hardship.
Do not retaliate against workers
Employers cannot retaliate against workers who take advantage of the state law’s protections. The law prohibits employers from discharging, threatening, penalizing, or discriminating against in “any other manner” employees who seek to exercise their rights under the law.
New York City lactation room requirement
New York City already has a lactation accommodation requirement in place.
Big Apple lawmakers passed legislation in 2019 that imposes similar requirements to the state law. The NYC law requires employers with 4 or more employees to provide lactation rooms upon request. It also mandates that employers provide written lactation accommodation policies.
The city law requires that employers provide a private room, that is not a bathroom. It needs to include a chair, an electrical outlet, a working surface, and access to running water. The room must also include a refrigerator intended for breast milk storage.
When not needed as a lactation room, the room can be used for other purposes.
If an employer determines that providing appropriate lactation accommodations poses an undue hardship, it is required under the NYC law to discuss other available options with the employee. Once an agreement has been made, the employer must provide written confirmation of the agreement.
However, New York City lawmakers have noted that it would rarely cause an undue burden for employers to meet lactation accommodation requirements.
What is federal legislation relating to nursing mothers?
President Joe Biden approved similar legislation a few weeks after Hochul’s sign off on the state legislation. The “Providing Urgent Maternal Protections for Nursing Mothers Act” or PUMP Act expands federal requirements under the FLSA on breastfeeding time and private space protections to include exempt employees.
Nursing mothers who are hourly workers have been covered under the FLSA since 2010 but salaried workers were not. The new law also extends the time breastfeeding mothers can take advantage of the requirement from 1 to 2 years.
Previously, the Fair Labor Standards Act required that employers with 50 or more employees provide reasonable break time for non-exempt employees to express milk for a nursing child for 1 year after the child’s birth. The employee number required for compliance has not changed.
The FLSA also requires that employers provide a place for expressing breast milk that is not a bathroom and is shielded from view and free from intrusion from coworkers and the public.
Those protections have been in place since 2010.
Which law controls?
Most federal laws have a stipulation that if a state law that offers greater or equal protection then the state law must be followed. Most state laws have a proviso that if a local law or federal law offers greater or equal protection then the stricter law must be followed.
Mishra noted that, in general, employers must follow the law that is the most protective of employees.
So, New York City employers will have to follow NYC lactation requirements. Conversely, employers in the rest of the state will have to follow the state law.
New York airports required to provide lactation accommodations
Hochul also signed a bill last summer that expanded nursing mother accommodation requirements to airports. The legislation mandates that airports provide a space for breastfeeding that is free from public view.
State Senator Timothy M. Kennedy said in a statement that the bill was created after a conversation with one of his constituents who said there was a gap in services for working mothers. The constituent, who traveled for her job, found few accommodations for breastfeeding mothers in airports.
Review current policies pertaining to nursing mothers
Employers across the Empire State should review their policies pertaining to nursing mothers. They should also review the spaces they provide for expressing breast milk in light of the new requirements.
Employers should also note that there is a trend toward passage of laws that support working mothers who need to express breast milk.
Employers should also note that there is a trend toward passage of laws that support working mothers who need to express breast milk. Adopting an accommodation policy could put employers ahead of the curve in places where such laws are not yet in existence.
Company culture can also come into play. Mishra said employers should consider whether accommodating working parents is something the company should do as part of its company culture. She noted that it could prove advantageous for businesses to improve organizational support for working parents even if the law doesn’t require it.
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