Federal law requires most employers to provide reasonable break time to employees who need to express breast milk during the workday and to provide a place free from intrusion (not a bathroom) where an employee can express milk, unless doing so presents an undue hardship. Many states and localities have adopted similar lactation laws, in some cases providing rights beyond those afforded under federal law. New York City law currently requires that employers with four or more employees provide reasonable break time to employees who need to express breast milk during the work day and to make reasonable efforts to provide a private room to do so.
Effective March 18, 2019, New York City employers will have to ensure that the room provided for expressing milk is in reasonable proximity to the employee’s work area, has a refrigerator for storing break milk, an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. The lactation room must also have nearby access to running water. And if the lactation room is not solely used for expressing milk, then when the room is being used by an employee to express milk the employer must provide notice to other employees that the room is given preference for use as a lactation room.
Much like federal law, New York City’s law provides an undue hardship exception for those employers who cannot provide a compliant lactation room. But unlike federal law, New York City’s new law requires an employer to engage in a cooperative dialogue with an employee if providing a compliant lactation room is an undue hardship. What qualifies as a “cooperative dialogue” is specifically defined by New York City’s Cooperative Dialogue law that went into effect in October 2018. Under the law, the employer must engage in a good faith dialogue with the employee, propose an alternative accommodation if the one requested is unreasonable, and provide a written final determination to the employee that identifies any accommodation granted or denied.
New York City’s new law also requires employers to adopt a written policy that (1) states that the employer will provide reasonable break time to express breast milk, (2) states that an employee has a right to request a lactation room, and (3) describes the process to request use of a lactation room, including how to submit a request, the employer’s obligation to respond within a reasonable amount of time not to exceed five business days, and the process to follow when two or more individuals need the room at the same time (including any contact information for any follow-up required). Finally, the policy must state that if a request for a room poses an undue hardship, the employee will engage in a “cooperative dialogue” with the employee. Employees must be provided a copy of the employer’s policy upon hire.
The new law directs the New York City Commission on Human Rights to publish a model lactation room policy and a model request form for employers. While we await those model forms, employers with any employees in New York City should review their employee handbook to ensure that any existing lactation policy is compliant before the effective date of this new law.