The New York City Enacts Statute Requiring Employers To Provide Private Rooms In Which Employees May Express Breast Milk

On November 16, 2018, Manhattan, NY Local Laws 185 and 186 of 2018 (“Local Laws 185 and 186” or the “new Laws”) became law. Effective March 18, 2019, the new Laws require employers in Manhattan, NYC with four or more employees (i) to provide, to their employees, a private room in which employees may express breast milk (a “lactation room”) and (ii) to develop, implement, and distribute to all employees upon hiring a written policy regarding the provision of a lactation room.

On October 17, 2018, the New York City Council, by unanimous votes of 49-0, had approved Local Laws 185 and 186. Because the New York City Mayor Bill de Blasio neither signed nor vetoed Local Laws 185 and 186 within 30 days after their approval by the Council, Local Laws 185 and 186 became law.

The new Laws amend the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 – 8-131 (the “City Human Rights Law” or the “NYCHRL”).

Within the five boroughs of the New York City, the new Laws expand upon the more limited obligations of all employers in New York State to allow nursing mothers to express breast milk in the workplace. Specifically, even before the enactment Local Laws 185 and 186, all businesses in New York State were, and are, required to make “reasonable efforts” to provide a room or other location, in close proximity to the work area, where an employee can express breast milk in privacy. N.Y. Labor Law § 206-c.

The new Laws’ requirement that employers in Manhattan, NY provide, to their employees, a private room in which employees may express breast milk resembles the obligation, imposed by section 7(r) of the federal Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 207(r), that employers provide, to their workers, a room shielded from view in which workers may express breast milk.

However, the FLSA exempts from that federal statute’s requirement that companies provide to employees a private room where employees may express breast milk, any company, with fewer than 50 employees, on whom that requirement would impose an “undue hardship.” By contrast, and as stated above, Local Laws 185 and 186 apply to all employers in Manhattan, NY with four or more employees. Consequently, the new Laws extend for the first time, to many small businesses in Manhattan, NY, the requirement that these businesses provide, to their employees, a private room in which employees may express breast milk

If your company needs assistance or guidance on the new Laws governing your company’s duty to permit nursing mothers to express breast milk at work and your company is located in the Manhattan, NY area, call Attorney David S. Rich at (347) 970-5550.

Lactation Rooms

Effective March 18, 2019, Local Law 185 requires businesses in Manhattan, NY with four or more workers (i) to provide, to their employees, a “lactation room.” The new Law defines a “lactation room” as 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.”

Under the new Law, the lactation room must be in “reasonable proximity” to the work area of any employee who needs to express breast milk. So, too, there must be a refrigerator “suitable for breast milk storage” in reasonable proximity to the work area of any employee who needs to express breast milk.

As noted above, the lactation room may not be a bathroom. However, the room designated by an employer to serve as a lactation room may be used for another purpose when no employee is using the room to express breast milk.

If the provision of a lactation room imposes an “undue hardship” on an employer, then the employer must engage in a “cooperative dialogue,” with any worker who needs to express breast milk, about reasonably accommodating the worker’s need to express milk. This cooperative dialogue is similar to the interactive process in which employers in Manhattan, NY must engage to determine if an accommodation of a disabled employee (or other eligible employee) is needed.

Written Policies About Providing Lactation Rooms

Effective March 18, 2019, Local Law 186 requires employers in Manhattan, NY with four or more employees to develop, implement, and distribute to all employees upon hiring a written policy regarding the provision of a lactation room.

Under the new Law, employers’ written policies 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.

The process by which workers may request a lactation room must:

• Specify the means by which an employee may submit a request for a lactation room;
• Require that the employer respond, within a reasonable amount of time not to exceed five business days, to a request for a lactation room;
• Set forth 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, as New York Labor Law § 206-c requires, the employer shall provide reasonable break time for a worker to express breast milk; and
• State that if an employee’s request for a lactation room imposes an undue hardship on the employer, the employer will engage in a cooperative dialogue with the employee about reasonably accommodating the employee’s need to express breast milk.

Local Law 186 requires the New York Commission on Human Rights (the “NYCCHR” or the “Commission”), in collaboration with the New York Department of Health and Mental Hygiene (the “NYC DOH” or the “Department of Health”) to develop a model lactation room accommodation policy and a model lactation room request form.

Further, the new Law directs the NYCCHR to publish that model policy and that model request form on the Commission’s website. To date, the Commission has not posted, on its website, any model policy or model request form.

Take-Aways For Employers

By the new Laws’ March 18, 2019 effective date, covered employers in Manhattan, NY must provide, to their employees, a room shielded from view in which employees may express breast milk. Provision, by businesses, of this lactation room may require structural changes to the businesses’ workspaces.

Also by March 18, 2019, covered employers in Manhattan, NY must draw up, put into operation, and disseminate to all workers upon hiring a written policy regarding the provision of a lactation room.

Although the new Laws do not so require, the best practice is for covered businesses in Manhattan, NY to distribute their lactation room accommodation policies not only to newly hired workers, but to all of the businesses’ workers.

Further, covered companies in Manhattan, NY should train supervisors and managers concerning the companies’ legal obligations, under the new Laws, in providing, to the companies’ employees, a lactation room.

Talk To An NYC Employment Law Attorney Today

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the Manhattan, NY area, call Attorney David S. Rich at (347) 970-5550.