Recently passed “Mother’s Day bills” will require employers to provide lactation rooms to employees expressing milk and to implement a policy informing employees about the right to a lactation room and detailing the process for making such an accommodation request. If signed by the Mayor, the law will be effective 120 days after his signature.
The NYC Mother’s Day Bills
Last week, the New York City Council passed a package of ten bills, colloquially referred to as the Mother’s Day bills. Two bills, in particular, are of special interest to New York City employers. Collectively, the bills will require employers with 15 or more employees to take affirmative steps to accommodate women who choose to express milk in the workplace by providing a lactation room, and by developing a policy and process for employees to request such an accommodation.
Current Law Regarding Lactation in the Workplace
Currently, section 206-c of the New York Labor Law addresses the rights of nursing mothers to express milk in the workplace. The guidelines state that “the law is applicable to all public and private employers in New York State, regardless of the size or nature of their business.”
The law requires employers to inform employees returning to work after the birth of a child of their right to take unpaid breaks to express milk, in either twenty or thirty minute increments, depending on the location of the lactation room. Employers must make “reasonable efforts” to provide a private location for purposes of expressing milk, which cannot be a “restroom or toilet stall.”
The newly passed bills impose greater obligations on employers in New York City.
If Signed, The New Law Will Require Private Lactation Room
The recently passed bills require employers to provide lactation rooms in the workplace. Although the bill’s summary provides that the bill applies only to employers with fifteen or more employees, the text of the bill itself is silent on employee thresholds. We expect additional guidance will be issued on this point, should the Mayor sign the bill into law.
The bill, which generally tracks current state law, mandates that the lactation room be “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” The bill requires New York City employers to ensure that the room have “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.” The lactation room must be “in reasonable proximity” to the employee’s workspace and the employer must provide a refrigerator “suitable for breast milk storage” also in close proximity to the employee’s workspace.
Finally, although employers may elect to use an already-existing employee personal room as the lactation room, the bill requires that while the room is being used by a woman expressing milk that it be restricted solely to that use.
As with other accommodation-focused laws, the City Council included a provision addressing hardship to the employer. The bill states that if “the provision of a lactation room . . . pose[s] an undue hardship on an employer, the employer shall engage in a cooperative dialogue.” This is yet another example of New York City’s effort to require employers to affirmatively engage with employees instead of reacting after an employee requests an accommodation. Seyfarth’s alert on the cooperative dialogue requirements under the New York City Administrative code can be found here: https://www.seyfarth.com/publications/MA100118-LE.
Written Policy Requirement
Employers will also be required to implement a policy to inform all employees about the existence of the lactation room as well as establish a policy for women expressing milk to request the accommodation. Although the bill does state that the policy must be “distributed” to employees upon hire, it does not provide a distribution obligation with respect to current employees, nor does it impose a posting obligation on employers.
The bill states that the accommodation process must include the following elements:
(1) Specify the means by which an employee may submit a request for a lactation room;
(2) Require the employer to respond to a request for a lactation room within a reasonable amount of time not to exceed five business days;
(3) 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;
(4) State that the employer shall provide reasonable break time for an employee to express breast milk, consistent with section 206-c of the Labor Law; and
(5) State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.
The bill also directs the New York City Commission on Human Rights, in collaboration with the Department of Health and Mental Hygiene, to develop a model lactation room accommodation policy, that conforms to the requirements of the bill, as well as a model lactation room request form. The City Council also directs that the Commission “shall” promulgate rules prior to the law’s effective date. Although the text of the bill is silent, we presume the written policy requirement also applies to only those employers with fifteen or more employees.
The bill, if signed by Mayor DiBlasio, will take effect one-hundred and twenty-days from the date of the mayor’s signature. Nevertheless, now is an opportune time for employers to evaluate their work locations to determine what space would be suitable as a lactation room. Additionally, employers should begin reviewing, and revising, current policies to ensure compliance with the bill’s requirements.