The New York City Council recently passed two bills addressing lactation rooms for breastfeeding mothers. The first bill, Int. No. 879-A, requires employers with four or more employees to provide lactation room accommodations for breastfeeding individuals. The second bill, Int. No. 905-A, requires covered employers to implement a written lactation room accommodation policy to be distributed to all employees.
Here are five key takeaways from the two bills, which go into effect on March 18, 2019:
- A “lactation room” is “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” At a minimum, the lactation room should include “an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.” There is no requirement to provide a refrigerator in the lactation room as long as one is otherwise available, as explained below.
- Both the lactation room and a refrigerator suitable for storing breast milk must be “in reasonable proximity” to the work area of the employee needing to express breast milk.
- As long as priority access to and exclusive use of the room is provided whenever an employee requires the space to express breast milk, the lactation room can be used for other purposes. Employers that elect to utilize a multi-purpose space must notify other employees that preference will be given for its use as a lactation room.
- “[I]f the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue,” which, as explained here, also applies to employees’ requests for reasonable accommodation related to religious needs, disabilities, pregnancy, childbirth or related medical conditions, or employees’ needs as victims of domestic violence.
- The written lactation room policy, at a minimum, should include the following elements:
- “[A] statement that employees have a right to request a lactation room” that also identifies “a process by which employees may request a lactation room”;
- An explanation about how an employee can submit a request for a lactation room;
- A statement that “the employer [will] respond to a request for a lactation room within a reasonable amount of time,” which shall not exceed five business days;
- “[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”;
- A statement that “the employer shall provide reasonable break time for an employee to express breast milk pursuant to section 206-c of the [New York] labor law”; and
- A statement that “if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue” with the employee.
The New York City Commission on Human Rights, in conjunction with the New York City Department of Health and Mental Hygiene, has developed model lactation room accommodation policies that comply with the new legislation as well as a model lactation room request form. The model policies as well as the model accommodation request form can be found on the New York City Commission on Human Rights website.
Employers in New York City may want to review their employment policies and practices, and consider adopting the model lactation room accommodation policy or a comparable lactation accommodation policy that meets the minimum standards outlined above. Employers may also want to evaluate the physical layout of each worksite to determine what modifications may be warranted to comply with the new legislation. Finally, as reported here and here, employers in New York City and elsewhere may wish to monitor and, if warranted, make appropriate adjustments to their existing practices in light of the growing trend of lawsuits arising from the alleged failure of employers to provide adequate pumping breaks and other accommodations to breastfeeding employees in accordance with applicable federal and state laws.