Employers in New York may need to take certain actions because of recent guidelines regarding blood donation leave and rights of nursing mothers. The guidelines and any required action, related to both issues are described in this Update.

Blood Donation Leave

Pursuant to the New York Labor Law, employers in New York with 20 or more employees at at least one site must provide certain employees—those who work for an average of 20 or more hours per week—with time off to donate blood. At the employers' option, they must either: (i) grant three (3) hours of leave in any 12-month period for employees seeking to donate blood ("Off-Premises Donation"); or (ii) allow such employees to donate blood during work hours, without the use of accumulated leave time, at least two (2) times a year at a "convenient time and place set by the employer," including blood drives at the employees' place of employment ("Donation Leave Alternatives"). Employers may not retaliate against employees for requesting or taking such leave.

The New York State Department of Labor ("NYSDOL") recently issued "Guidelines for Implementation of Employee Blood Donation Leave" that contain specific notice and recordkeeping requirements. As such, employers must now notify employees in writing of their right to take blood donation leave, in a manner that "will ensure that employees see [the notice]"—such as by postings in prominent areas, notices in employee handbooks, mailings or other comparable methods. If employers choose to provide such notice directly to their employees (as opposed to, for example, providing notice in their employee handbooks), they must: (i) provide such notice at the time of hire to new employees and thereafter; (ii) issue notice to all employees on an annual basis no later than January 15 of the applicable calendar year.

The Guidelines clarify that leave for Off-Premises Donation is unpaid, employers must provide such leave at least once per calendar year during the employees' regular working hours and such leave need not accrue (i.e., carry-over) if not used during the calendar year.

With respect to leave for Donation Leave Alternatives, such leave must be paid (without the use of any accumulated leave time of the employees such as sick leave or vacation) and must be provided at least twice per calendar year. Such Donation Leave Alternatives must be provided at "a time that will not require an employee to attend outside [of] normal work hours and shall not require an employee to travel to a location which is not a reasonable travel distance." Such leave must allow employees enough time to donate blood, recover from such donation (including "partaking nourishment after donating") and return to work. If a Donation Leave Alternative was scheduled for a time when an employee is on other leave—such that the employee does not have the required two (2) alternatives within a calendar year—the employer must make another alternative available to the employee or instead provide for leave for an Off-Premises Donation. Donation Leave Alternatives cannot be scheduled at a time when "a significant number of employees are out of the office" (such as during the last week of December or around other significant holidays) and notice of such alternatives must be prominently posted in the workplace at least two (2) weeks beforehand. In addition, the two (2) alternatives must be scheduled at least 60 days apart during any calendar year and notice of the second leave alternative for a particular calendar year must be provided prior to December 1 of that year. Even if employers provide for Donation Leave Alternatives, the Guidelines recommend that employers also offer employees up to three (3) hours of leave for the purposes of donating blood platelets, plasma or red blood cells (such donations can only be done at a Red Cross or other medical facility).

Employers may require employees to provide reasonable notice of their intent to take such leave—at least three (3) working days for Off-Premises Donations and two (2) days prior to the use of a Donation Leave Alternative. For employees who fill positions essential to the operation of the employer or necessary to comply with legal requirements, if three (3) days notice is not sufficient, employers may require additional notice not to exceed 10 working days (but employers must inform employees of this additional requirement). For emergencies requiring blood donation for an employee's own surgery or that of a family member, employers must provide reasonable accommodations for shorter notice periods. Employers also may require employees who take leave for Off-Premises Donations to provide a notice of blood donation or good faith effort to donate blood or some other sufficient proof for this purpose.

Rights of Nursing Mothers

The New York Labor Law requires all employers (i) to permit employees who are nursing mothers to take reasonable unpaid break time to express breast milk each day for up to three (3) years following the birth of a child, and (ii) to make reasonable efforts to provide a room "in close proximity to the work area where an employee can express milk in privacy." The law also prohibits discrimination against employees who choose to express breast milk in the workplace.

The NYSDOL recently issued "Guidelines Regarding the Rights of Nursing Mothers to Express Breast Milk in the Work Place" that, among other things, require employers to provide written notice of the right to express breast milk in the workplace to all employees who are returning to work following the birth of a child. This notice may be provided individually to such employees or to all employees generally through notice in the employee handbook or the posting of a notice in a central location. Employees must provide notice of their intent to use such breaks to express breast milk and the Guidelines recommend that employees notify their employers prior to their return to work following leave taken after the birth of a child.

The Guidelines clarify that such unpaid breaks must not be less than 20 minutes or not less than 30 minutes if the location in which the employee may express breast milk is not close to the employee's work area. Employees can elect to take shorter unpaid breaks for this purpose. In most circumstances, employers must provide such unpaid breaks at least once every three (3) hours. Employers may not require employees to postpone their breaks for more than 30 minutes.

Employees may elect to take their unpaid break time concurrently with regularly scheduled paid break or meal periods and/or to work before or after their normal shifts to make up the time used for these unpaid breaks, provided that such time falls "within the employer's normal work hours." Notwithstanding the foregoing, pursuant to federal and state wage and hour laws, (i) employers cannot reduce the salaries of "exempt" employees for time spent on such ‘unpaid breaks' (because such reductions would be inconsistent with their exempt status) and (ii) breaks of 20 minutes or less for "non-exempt" employees must be paid.

Employers must provide a "private" room or other location ("Location") for employees to express breast milk so long as it is neither "significantly impracticable, inconvenient, [n]or expensive to the employer to do so" (based on "relevant factors" including those specified in the Guidelines). In order to be considered "private," the Location must not be open to other individuals frequenting the business, such as employees, customers or other members of the public. The Location should have a door equipped with a functional lock or, as a last resort, a sign advising that the Location is in use and not accessible to other employees or the public. The Location also must be clean, well lit, have any windows covered and contain at minimum a chair and small table, desk, counter or other flat surface. If employers cannot provide a dedicated room for lactation, the use of a vacant office or other room on a temporary basis is acceptable provided that it is not open to the public or other employees while the nursing mother is using it for expressing breast milk. As a last resort, the use of a cubicle is permitted if it is fully enclosed with a partition, not otherwise accessible to the public or other employees while in use and has walls at least seven (7) feet high. The Location cannot be a restroom or toilet stall.

The Location also must be in walking distance from the employee's work station without unreasonably lengthening the break period. Employers are also encouraged to provide an outlet, clean water supply and access to refrigeration for storing the expressed milk (although employers are not responsible for ensuring the safekeeping of such expressed milk). If employers have more than one (1) employee at a time needing access to such Location, the employers may dedicate a centralized location for use by all such employees, provided that the employers must make every effort to locate such space at a reasonable distance from the employees using it.

The Guidelines reiterate that employers may not discriminate against employees who avail themselves of the right to express breast milk in the workplace, and warn that "encouraging or allowing a work environment that is hostile to the right of nursing mothers to take leave" to express breast milk may constitute discrimination.