NYC Council Passes Employment Bills Requiring Lactation Rooms and Policies

The New York City Council Recently Passed Bills that Require NYC Employers to Provide Designated Lactation Rooms and Establish a Workplace Lactation Accommodation Policy

The New York City Council recently passed several measures intended it to make it easier for mothers to express breast milk during the workday. Most notably, the bills require New York City employers to provide designated lactation rooms and establish a workplace lactation accommodation policy regarding the use of such rooms.

Federal and State Breastfeeding Regulations

Existing federal and state laws already address these issues. Under Section 7 of the Fair Labor Standards Act (FLSA), employers must provide reasonable break times for workers to express breast milk for up to one year following a child’s birth. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, for the employee to express breast milk.

Employers with fewer than 50 employees are not subject to the FLSA breastfeeding requirements. However, the federal law does not preempt State and local governments from providing greater protections to employees. New Jersey already imposes such requirements on employers. Amendments to the New Jersey Law Against Discrimination (NJLAD) further provide that it is a civil rights violation for a working woman to be fired or otherwise discriminated against because of breastfeeding or expressing her milk during breaks.

New York was the first state in the nation to pass a civil rights law that protects a mother’s right to breastfeed in public. New York’s labor law also grants rights to breastfeeding mothers. Current New York law requires employers to provide reasonable, unpaid break times or permits employees to use paid break or meal times to express breast milk for up to three years from the birth of the child. Employers must make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy.

NYC’s Lactation Room Bills

The New York City Council recently passed legislation imposing additional obligations on New York City employers. Under Intro. 879-A, employers with 15 or more employees must provide lactation rooms, as well as refrigerators, in reasonable proximity to work areas for the purposes of expressing and storing breast milk. Under the bill, the term “lactation room” means a sanitary place, other than a restroom, that can be used to express breast milk, shielded from view and free from intrusion, and that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.

Intro. 879-A further provides that if the room designated by the employer to serve as a lactation room is also used for another purpose, the sole function of the room must be as a lactation room while an employee is using it to express breast milk. In addition, if providing a lactation room poses an undue hardship on the employer, the employer must engage in a “cooperative dialogue” with the employee regarding other options that may be available.

The second bill, Intro. 905-A, requires employers to implement a Lactation Room Accommodation Policy, which must be distributed to all employees upon hiring. The policy must include a statement that employees have a right to request a lactation room and identify a process by which employees may request a lactation room. Under the bill, this process 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.

Intro. 905-A also directs the City Commission on Human Rights (CCHR) to establish and make available a model lactation accommodation policy for employers to use.

If signed by Mayor Bill DiBlasio, the bills would take effect 120 days from the date of the mayor’s signature. Given the likelihood that the new requirements will become law, NYC employers should begin considering their compliance obligations, such as where to locate a lactation room. For compliance concerns, we encourage you to contact a member of the Labor & Employment Law Group at Scarinci Hollenbeck.