On December 9, 2022, NYS Governor Kathy Hochul signed legislation expanding the protections for breastfeeding employees in New York State workplaces. The expanded legislation takes effect today, June 7, 2023.
The legislation clarifies break time requirements for expressing breast milk, sets forth the minimum standards for the spaces employers must provide to enable employees to express breast milk, and requires employers implement a written policy published by the New York State Department of Labor regarding employee rights when breastfeeding in the workplace.
Designated Spaces
The expanded legislation requires all New York State employers to ensure that pumping spaces are convenient and private, in close proximity to the work area, well lit, shielded from view, and free from intrusion by others. The space cannot be a restroom or toilet stall, and must provide all of the following:
- A chair
- A working surface
- Nearby access to clean running water
- An electrical outlet if the workplace has electricity
Additionally, if there is a refrigerator in the workplace, employees must be able to use it to store expressed milk.
If the room or location provided for expressing milk is not dedicated solely for that use, it must be made available to employees for expressing milk when needed and cannot be used for any other purpose while being used for expressing milk. 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 milk.
Exemption
The expanded legislation contains an exemption for employers where compliance with the law would present an undue hardship, causing significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer’s business. However, even if an employer faces an undue hardship, it still must make a reasonable effort to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express milk in privacy.
Break Time
The former version of the legislation required employers to provide employees reasonable time each day to express breast milk. The expanded legislation requires employers to provide employees reasonable time to express breast milk “each time the employee has a reasonable need” to do so.
The expanded legislation also clarifies that employees must be able to use their unpaid break time or paid break or meal time if the employee elects to use that time to express milk.
Notice Requirements
Employers are required to implement the New York State Department of Labor model policy to inform employees of their rights under this law. The notice must be provided to all new hires, annually to all employees, and to employees returning to work after the birth of a child.
Nondiscrimination
The expanded legislation prohibits employers from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against employees for exercising their rights under the law.
Employers should ensure they have a room or location in the workplace that meets the requirements of the expanded legislation, educate supervisory and managerial staff on the new requirements, and adopt and distribute the model policy published by the New York State Department of Labor in accordance with the notice requirements under the law. Barclay Damon will continue to monitor developments regarding this legislation.
If you have questions regarding the content of this alert, please contact Martine Wayne, associate, at mwayne@barclaydamon.com; Payne Horning, associate, at phorning@barclaydamon.com; Megan Bahas, of counsel, a mbahas@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.