United States: Pumping Up Protections: New York City Employers Must Comply With Strict New Lactation Room Laws

While in recent years there has been an increase in legislation providing accommodations to breastfeeding employees, New York City's new laws are some of the strongest protections afforded across the country. 

On November 17, 2018, the New York City Council amended the New York City Human Rights Law with Local Laws 185 and 186, which mandate that New York City employers meet certain lactation room standards and distribute a written lactation room accommodation policy by March 17, 2019. The requirements of these new laws exceed the current obligations under New York state law.

Lactation Room Requirements

Pursuant to Local Law 185, employers must provide employees needing to express breast milk with a lactation room and refrigerator suitable for storing breast milk in reasonable proximity to their work area.

A lactation room is defined as "a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion." It must include, at a 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.

If a lactation room is also used for another purpose, the law requires that the room serve only as a lactation room while an employee expressing milk is using the room. Moreover, use as a lactation room is given priority over any other use of the room, and employers are obligated to give notice of this preference to other employees.

Employers who would face an undue hardship in meeting these lactation room standards must, as an alternative, engage in a "cooperative dialogue"¹ with employees needing to express breast milk.

Lactation Room Accommodation Policy Requirements

Local Law 186 requires employers to develop, implement and distribute to all new employees a written lactation room accommodation policy. The New York City Commission on Human Rights and Department of Health and Mental Hygiene are to create and post online a model lactation room accommodation policy and model lactation room request form.

Although no timetable for the development of the model policy has been established thus far, the model policy will include, at a minimum, the required statement that employees have a right to request a lactation room and the process by which employees can make that request. The process must:

• Specify the means by which employees 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 employees to express breast milk; 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 with the employee.

Leading the Charge

While in recent years there has been an increase in legislation providing accommodations to breastfeeding employees, New York City's new laws are some of the strongest protections afforded across the country. Many states and localities have proposed or adopted laws similar to the New York state law, explicitly recognizing the importance of breastfeeding and the difficulty of transitioning back to the workforce while doing so. Some jurisdictions, like Indiana and Sunset Valley and San Antonio, Texas, have enacted more exacting legislation, though applicable only to government employers. Currently, San Francisco's laws, applicable to all employers, are the only regulations exceeding New York City's. In addition to what is required by New York City laws, San Francisco employers must also engage in an interactive process with the employee, regardless of whether there is an undue hardship, to determine appropriate lactation break periods and locations; retain records of initial lactation accommodation requests for three years; and include certain other information in their policies.

Next Steps for Employers

In light of these new requirements, employers with employees in New York City need to assess their existing lactation rooms and review their lactation room accommodation policies, and update them accordingly.

Although the New York City Commission on Human Rights will be releasing a model policy, it is important to note this policy will contain the minimum standards. Employers are well-advised not to blindly adopt such policies when they are issued, but rather to ensure that the policies they use, while containing the minimum requirements, are appropriately designed to be effective for their worker populations. A one-size-fits-all approach may not work. This is particularly the case for employers operating in multiple jurisdictions, who may choose to use a single policy compliant with the jurisdiction with the most encompassing legal requirements. Employers who feel compliance with the lactation room requirements will cause an undue hardship should consult counsel to determine, under the more stringent New York City Human Rights law standards, whether their situation would allow for a cooperative dialogue as an alternative.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the  attorneys in our Employment, Labor, Benefits and Immigration or the attorney in the firm with whom you are regularly in contact.

Footnote

1   "Cooperative dialogue" is defined in the New York City Human Rights Law as the process by which the employer and person entitled to an accommodation, or who may be entitled to an accommodation, engage in good faith in a written or oral dialogue concerning the person's accommodation needs; potential accommodations that may address the person's accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.