On June 7, 2023, certain amendments to New York State’s Nursing Mothers in the Workplace Act took effect. The Act’s amendments expand the rights of nursing employees to express breast milk in the workplace by requiring employers to designate certain rooms or locations for employees to use while expressing breast milk; adopt a written breast milk expression policy; and timely distribute the policy to employees.
The N.Y.S. Department of Labor recently published a Model Policy to employers to use in complying with the Act. https://dol.ny.gov/breast-milk-expression-workplace
The Model Policy establishes the minimum standard for breast milk expression policies, and while employers are not obligated to adopt the Model Policy word for word, doing so may assist them in ensuring compliance with the Act. Employers that elect to adopt their own breast milk expression policies must be sure that their policies at least meet or exceed the requirements of the Model Policy.
The Model Policy details a number of specific rights employees have with respect to expressing breast milk in the workplace, including, but not limited to, the following:
For up to three years following the birth of a child, employees are entitled to unpaid break time to express breast milk. Employers must allow employees to also use their paid break time or meal periods to express breast milk. The new federal Providing Urgent Workers Fairness (PUMP) Act only protects employees for up to one year following childbirth.
Unpaid breaks must be at least 20 minutes, or 30 minutes if the designated room or location is not near the employee’s workstation; however, employees may choose to take shorter or longer breaks as needed.
Employees who request break time to express breast milk are entitled to unpaid break time at least every three hours, subject to the individual needs of each employee.
Employees are not required to make up their unpaid break time but must be permitted to work before or after their normal hours to make up any break time (provided that such time is still within the employer’s normal work hours).
Employers cannot require employees to work while expressing breast milk, but employees may voluntarily choose to do so. Employers should remember that if a non-exempt employee performs any work during the break, the employee must be compensated for such time.
Employers may not discriminate against employees for taking unpaid time to express breast milk.
The Model Policy recognizes that all employees are entitled to these rights and protections, regardless of whether they work remotely or in person. Although lactation spaces are not an employer’s responsibility while employees are working remotely, break times are.
The Model Policy directs that employers must continue to comply with their obligations under other federal, state, and local laws to provide employees with paid and unpaid break and mealtimes, regardless of an employee’s need to express breast milk. Employer breast milk expression policies must be in writing.
To comply with the Act’s policy requirements, employers should do the following:
Either implement the Model Policy or modify already existing policies to align with the minimum required standards therein.
To the extent not already done, designate proper rooms or locations for employees to express breast milk.
Ensure that supervisors and human resources personnel are apprised of any changes to existing policies, and provide appropriate training regarding the same, including timing for distributing the breast milk expression policy to employees.
Monitor the N.Y.S. Department of Labor for additional guidance.