[UPDATE: Governor Kathy Hochul signed the Act into law on December 9, 2022, and it will take effect on June 7, 2023.]
The New York State Legislature passed S4844-B (the “Act”) on May 3, 2022, which would expand the rights of nursing employees to express breast milk in the workplace.
Under current New York law, employers must provide employees with reasonable break times and make reasonable efforts to provide a space for employees to pump breast milk. Like its New York City counterpart, reported on here, S4844-B would clarify the scope of covered employers’ obligations by imposing specific requirements regarding the room or location that employers designate for employees to use while expressing breast milk. The Act will also require employers to distribute a written policy to employees.
If signed by Governor Kathy Hochul, the Act would become effective 180 days thereafter.
Lactation Room Requirements Explained
The Act would require all New York State employers to designate a room or location, other than a restroom or toilet stall, for the use by an employee to express breast milk in the workplace. In essence, the Act codifies the New York State Department of Labor’s longstanding Guidelines and FAQs, by requiring that the room or location be:
- in close proximity (in walking distance so as to “not appreciably lengthen the break time”) to the work area,
- well lit,
- shielded from view, and
- free from intrusion from others.
Additionally, such room or location must also, at a minimum, contain (i) a chair, (ii) a surface on which the employee may place a breast pump and other personal items, (iii) nearby access to clean running water, and (iv) an electrical outlet. If there is access to refrigeration at the workplace, employers must allow such to be used for the storage of expressed milk. However, employers are not required to provide a separate refrigerator for expressed milk, nor does there need to be a refrigerator in the lactation room.
The room or location does not need to be designated solely for lactation purposes. If a designated room or location is used for both lactation and other purposes (e.g., as a meeting room), employers must make such room or location available to an employee expressing breast milk when needed. Employers in this instance must also provide notice to all employees that the room has been designated for use by employees expressing breast milk.
Employers who cannot meet the requirements because of undue hardship must make “reasonable efforts” to provide a room or other location (not a restroom or toilet stall) in close proximity to the work area, as defined above, where an employee can express breast milk in privacy. The Act defines an undue hardship as a request that would cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
Lactation Accommodation Policy Requirements
The Act would further require employers to distribute a written policy regarding the rights of nursing employees. The state would be directed to develop and provide a model policy, similar to the state’s creation of model sexual harassment policies and training. The policy must inform employees of their lactation accommodation rights and provide employees with a process to request a lactation room or location, to which employers must respond within five business days.
Employers would be required to distribute the written policy:
- to new employees upon hire,
- on an annual basis thereafter, and
- upon an employee’s return to work following the birth of a child.
What Employers Should Do Now
To prepare for the Act’s requirements, employers should:
- review current policies and practices and revise as needed to ensure compliance with all applicable federal, New York State, and New York City lactation accommodation laws;
- assess workspaces to arrange for any needed renovations or other changes to a room or location that would meet the requirements set forth in the Act;
- prepare a procedure by which to distribute a written policy of employees’ lactation rights (e.g., incorporating such a policy into a handbook or onboarding materials); and
- train supervisors and Human Resources personnel on any changes made to current lactation accommodation policies and procedures.
We will continue to monitor the status of the Act to ensure timely compliance with any changes.
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| Nancy Gunzenhauser Popper New York 212-351-3758 npopper@ebglaw.com |
Kamil Gajda New York 212-351-4524 kgajda@ebglaw.com |
