Federal and New York State Protections for Nursing and Pregnant Workers Become Effective This Month

New York State Labor Law on Protections for Breastfeeding Workers

As we reported in our prior alert, effective today, June 7, 2023, New York State law will require all employers, public or private and regardless of size, to provide employees with reasonable unpaid time to express breast milk at work for up to three years following childbirth, as well as a lactation room in which to do so. The law requires that the New York State Department of Labor (DOL) issue a written policy regarding rights under the law and that employers “provide such written policy to each employee upon hire and annually thereafter, and to employees upon returning to work following the birth of the child.” Employers already subject to the analogous New York City law, which applies to employers with four or more employees, should carefully review their current policy and lactation room equipment to ensure compliance with the below additional requirements of the state law, especially by ensuring their lactation policies are disseminated annually. And all employers in New York outside the city or that have fewer than four employees should ensure they have developed a lactation policy and offer a lactation room consistent with the below requirements under state law.

On June 5, the DOL released its written policy, which is a helpful tool for implementing the statutory requirements:

Using Break Time

• Employers must provide reasonable unpaid break time to express breast milk, and employees must be permitted to use paid break or meal time to express milk.
  
  
• Employers must provide reasonable unpaid break time based on individual needs. If requested, such breaks must be at least every three hours. And each break must be at least 20 minutes (or 30 minutes if the lactation room is not close to the employee’s workstation).
  
  
• Employers may not discriminate against an employee who expresses milk at work.
  
  
• Employees cannot be required to make up unpaid break time but must be permitted to work before or after their normal shift to make up such time as long as the time falls within the employees’ normal work hours.
  
  
• Employees cannot be required to work while expressing milk, but they may choose to, and when they do, that time must be compensated. If employees use paid break time to express milk, that time must be compensated as well.
  
  
• Employees who work remotely have the same rights to unpaid time off to express milk as employees who work in person.
  
  

Making a Request to Express Breast Milk

• Employees who want to express milk at work must give their employer reasonable advance notice, generally before returning to work if on leave.
  
  
• Employees should submit a written request to their direct supervisor or the individual designated by the employer for processing such requests. Employers must respond in writing within five days.
  
  
• Employers must notify all employees in writing when a room has been designated for lactation.
  
  

Lactation Room

• Room requirements
  
  1. Cannot be a restroom or toilet stall.
     
     
  2. Be in close proximity to an employee’s work area so as to not significantly extend needed break time.
     
     
  3. Has good natural or artificial light.
     
     
  4. Be shielded from view and free from intrusion.
     
     
  5. Has accessible clean water nearby.
     
     
  6. Has an electrical outlet if the workplace has electricity. Note that the New York City law requires access to an electrical outlet.
     
     
  7. Has a chair.
     
     
  8. Has a flat surface.
     
     
  9. If the room has a window, it must be covered.
     
     
  10. If possible, the room should have a door with a lock. If that is not possible, as a last resort employers can use a sign advising that the space is in use. The city’s model policy requires that lactation rooms be lockable from the inside.
      
      
  11. Be maintained and cleaned.
      
      
• If the employer has a refrigerator, employees must be allowed to use it to store breast milk. Employers are not responsible for the milk’s safekeeping, and employees must store milk in closed containers and bring it home every day. Note that city law requires the provision of a refrigerator suitable for breast milk storage in reasonable proximity to the employee’s work area.
  
  
• When the provision of a lactation room would pose an undue hardship, employers are still required to provide a room where the employee can express milk that meets as many of the requirements as possible and may not deny employees the right to express milk because it is difficult to find a location. Under city law, when the request to use a lactation room poses an undue hardship, employers are required to engage in cooperative dialogue.
  
  
• The DOL’s policy also explains how to contact the DOL if an employee believes they are experiencing retaliation for expressing milk at work or their employer is in violation of the statute/policy.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

The PUMP Act went into effect on December 29, 2022, as our prior alert explained, with the enforcement mechanism under the law becoming effective on April 28, 2023. The PUMP Act requires employers to provide reasonable break time for employees (exempt and nonexempt) to express breast milk for one year after childbirth and to provide a lactation room that is shielded from view, free from intrusion and not a bathroom. Employers are not required to compensate employees for this break time unless otherwise required under federal, state or municipal law or if the employee is not “completely relieved from duty during the entirety of such break.” Nonexempt employees should be paid for lactation break time if they would otherwise be paid for that break time, and exempt employees’ salaries must not be affected by pumping breaks. Employers with fewer than 50 employees are not subject to the PUMP Act requirements if they pose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. New York State law and New York City law provide broader protections for breastfeeding employees than the PUMP Act, as referenced above. The DOL recently published guidance on compliance with the PUMP Act. Notable portions of the guidance include:

• All employees who work for an employer covered under PUMP, regardless of work location, are counted toward the 50-employee exemption threshold.
  
  
• The PUMP Act does not provide for a maximum number of breaks per day.
  
  
• Lactation rooms must be functional, shielded from view and free from intrusion. Privacy in lactation rooms can be assured with a lockable door or signage on a door.
  
  
• The room must contain a place for the employee to sit and a flat surface, and employees must be able to safely store milk at work, which can include a personal cooler. The guidance recommends the lactation room have access to electricity and that there be access to sinks nearby.
  
  
• Requiring lactating employees to make up for time spent nursing could constitute retaliation.
  
  
• Remote workers are permitted to take the same breaks on the same basis as other employees, and employers must ensure that if they provide remote workers with camera platforms, employers are not able to observe the remote worker while pumping.

Employers should note that the PUMP Act resulted in changes to the Federal Labor Standards Act (FLSA) poster, which can be used to meet the FLSA’s posting requirements.

Pregnant Workers Fairness Act (PWFA)

Effective June 27, 2023, federal law under the PWFA requires, among other things, that employers with 15 or more employees provide reasonable accommodations for “known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee” unless the accommodation would impose an undue hardship. Several existing laws already protect employees who are pregnant against discrimination and provide for reasonable accommodations, but the PWFA explicitly protects conditions that are related to pregnancy and childbirth but may not be federally protected disabilities. The EEOC is expected to issue within the next year regulations to implement the PWFA. To ensure employers are prepared for the June 27 effective date of this new law, and for more information about comparable New York State and New York City statutes related to pregnancy in the workplace, please see our prior alert.

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For questions or concerns regarding any of the issues raised in this alert, please contact a member of Kramer Levin’s Employment Law Department.