NYC Imposes Additional Employer Obligations Related to Lactation Accommodation

State law requires all New York employers to make reasonable efforts to provide a room (other than a restroom) or other location where an employee may express milk in privacy. The New York City Council recently took steps to expand the obligations of NYC employers related to nursing mothers, by passing a pair of bills (Intro. 879-A and Intro. 905-A) that amend the New York City Human Rights Law and become effective on March 17, 2019.

First, the City legislation requires employers to create and implement a written lactation room policy, which must be distributed to all employees upon hiring. The policy must include the following: 

• A statement that employees have a right to request a lactation room and reasonable break times (unpaid) to express milk pursuant to section 206-c of the NYS Labor Law. 
• A process by which employees may request use of a lactation room. The process must include, at a minimum, a method to submit a request for a lactation room, a requirement that the employer respond to such a request within a reasonable amount of time not to exceed five business days, and a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for scheduling follow-up. 
• Assurance that there will be a “cooperative dialogue” between the employer and an employee in the unusual circumstance that providing a lactation room poses an undue hardship to the employer. The cooperative dialogue process was explained in a prior advisory that can be found here.

Second, the City legislation requires employers to ensure that the lactation room be suitable for its purpose. In that regard, the lactation room must be sanitary and

• contain a chair, an electrical outlet, and a surface on which to place a breast pump and other personal items;
• located within reasonable proximity to the employee’s work area;
• located within close proximity to running water; and
• shielded from view and intrusion.

The room designated for lactation does not have to be used exclusively as a lactation room at all times, but when an employee is using the room to express milk, then lactation must be the sole function of the room at that time. Further, when the lactation room is in use, “the employer shall provide notice to other employees that the room is given preference for use as a lactation room.”

Third, employers must ensure that a refrigerator is located within close proximity to the nursing employee’s work area. 

The NYC Commission on Human Rights has also been charged with the development of a model lactation room accommodation policy and a model lactation room request form. Given all of the new requirements and the impending effectiveness of the laws, we encourage our clients to begin preparations immediately, including by revising their lactation policy and distributing the same to all employees. In the absence of official guidance, we recommend distributing the policy together with other new hire materials, or including it within an employee handbook, which is provided upon hire (for which an acknowledgment or receipt is signed by the employee). Davis Wright Tremaine attorneys remain available to help you.