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New York City employers with four or more employees are now required to provide a lactation room for employees who need to express breast milk during the workday. As a part of this requirement employers must also create and make available a written policy informing employees that they have the right to request a lactation room and explaining how to do so.

A “lactation room” can be any sanitary place other than a restroom, so long as it can be used by employees to express breast milk. This means that the inside of the room is (1) shielded from view and (2) free from outside intrusion. Any lactation room must also include, at minimum, an electrical outlet, a chair, a surface (such as a table or a counter) on which an employee can place a breast pump and other personal items, and nearby access to running water. The lactation room should also be reasonably close to an employee’s work area and to a refrigerator in which breast milk can be stored.

A lactation room may be a space available on a temporary basis. In other words, it may serve other purposes when no employees need to use the room to express breast milk. However, when an employee needs to use the room to express breast milk, it must only serve that purpose and the employer must provide notice to other employees that the room is given preference for use as a lactation room. Where the lactation room is a multi-purpose space, employers should use signage or a scheduling system, and ensure that any surveillance, security, or other cameras are turned off, covered, or disabled.

It is important to note that employers are not required to provide a lactation room or other accommodation if doing so would pose an undue hardship to the employer. In determining whether this is the case certain factors must be considered, including, without limitation, the nature and cost of the accommodation, the overall financial resources and size of the employer and its facilities, and the effect of the accommodation on resources. Inconvenience is not an undue hardship.

If an employer believes that providing a lactation room or other accommodation would pose an undue hardship, the employer is obligated to engage in a “cooperative dialogue” with the employee. A “cooperative dialogue” means a good faith dialogue about the employee’s accommodation needs, the potential accommodations that would address the employee’s needs, and the difficulties (if any) associated with providing the potential accommodations. After engaging in a cooperative dialogue, the employer must provide the employee with a final written determination identifying any accommodation(s) granted or denied.

Employers are now also required to develop and implement a written policy regarding the provision of a lactation room and distribute such policy to all employees upon hiring. The written policy must (1) include a statement that employees have a right to request a lactation room, (2) specify the means by which an employee may submit a request for a lactation room, (3) require that the employer respond to a request for a lactation room in a reasonable amount of time (not to exceed five business days), (4) provide a procedure to follow when two or more employees need to use the lactation room at the same time, including contact information for any follow up required, (5) state that the employer is required to provide reasonable break time for an employee to express breast milk, and (6) state that the employer will engage in a cooperative dialogue if the request for a lactation room poses an undue hardship for the employer.

It is important to remember that these new requirements must be considered in addition to existing requirements under related federal and state law. Specifically, the Fair Labor Standards Act requires employers with 50 or more employees to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child's birth, and the New York State Labor Law requires all New York employers regardless of size to provide reasonable unpaid break time and to permit employees to use paid break time or meal time to express breast milk for their nursing child for up to three years after child birth. Therefore, in addition to providing a lactation room and a written policy, employers must provide a reasonable amount of time for employees to express breast milk and should compensate employees for break time used to express breast milk to the same extent other similarly situated employees are compensated for break time. Covered New York City employers should review their current policies and practices accordingly in order to ensure compliance with all requirements, new and old.

For more information on the topic discussed, contact:

• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792