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NYS Releases an Updated Notice and Guidance on Paid Lactation Breaks 

Effective tomorrow (June 19), New York’s (NY) amendment to its lactation break law will require all public and private employers to provide nursing employees with paid break time of up to 30 minutes when they have a reasonable need to express milk for up to three years following childbirth. Employers will also be required to permit employees to use existing paid break time or mealtime for any time that is needed over 30 minutes for this purpose. The prior law only required that an employer provide “reasonable unpaid break time” and allow the use of existing paid break or mealtime to express milk. 

The NY Department of Labor (DOL) has provided updated guidance in the form of frequently asked questions (FAQs) as well as an updated notice of its “Policy on the Rights to Express Breast Milk in the Workplace” to assist employers with compliance. Key highlights of the guidance include the following: 

  • Paid time is up to 30 minutes; therefore, if an employee takes a lesser amount of time, they would only be paid for the amount of time taken; 
  • An explicit statement that confirms that there is no limit on how many times an employee may take paid breaks to lactate only that they may do so as many times as is reasonable; 
  • Employees can choose to use their regular breaks or mealtime, but an employer cannot require employees to use their breaks or mealtime for lactation breaks; 
  • Employers cannot require employees to make up the paid break time or reduce an employee’s mealtime or regular break time; 
  • Employers cannot require an employee to complete work tasks while expressing breast milk; 
  • Employees are permitted to stack lactation breaks either before or after their regular breaks or mealtime, as needed; and 
  • A recommendation, when feasible, for employers to allow for flexible work hours, job sharing, and/or part-time scheduling to accommodate employees with children of nursing age and to permit offsite breaks instead of pumping. 

Notably, the DOL does not define what is considered “reasonable” in terms of accommodation, but the guidance does state that “the number of break times needed throughout the day will be unique to each individual employee.” This indicates that employers should not have blanket policies that impose limitations on accommodations and should instead work with each employee on an individualized basis to determine what is necessary. 

The law also requires employers to notify employees of their rights when breastfeeding in the workplace. The notice which has been developed by the state must be provided to every employee at hire and annually thereafter, as well as to employees returning to work after childbirth. 

Employees may be required to provide advance notice of the need for lactation breaks; the DOL states that the request should include their anticipated return to work date, as well as details regarding how many breaks they anticipate needing during the workday, and if they have preferred times to express breast milk. Employers should ensure that they are responding to all requests to express breast milk in writing within five (5) days of receiving the request. 

As a reminder, employers are required to provide employees with a private room or other location close to the employee’s work area where they can pump breast milk. If the employer cannot provide a dedicated lactation room, a temporarily vacant room may be used instead. As a last resort, a cubicle can be used, but it must be fully enclosed with walls at least seven feet tall.  

Next Steps 

Employers should provide the updated notice to all employees as soon as possible, and ensure prior versions of the notice are no longer in circulation. Review your existing lactation accommodation policy to ensure it aligns with these new requirements and be prepared to adopt any additional policy requirements outlined by the state such as paid time provisions and non-discrimination and non-retaliation provisions. Review and update your procedures including new hire information and return from leave processes to ensure that all accommodation requests are addressed promptly and consistent with employees’ rights under the law. Consider training supervisors and managers on the law’s requirements to avoid claims of discrimination and retaliation. 

Employers should also keep in mind any requirements under federal or local law (i.e., the federal PUMP Act and NYC lactation accommodations).  

Employers who have outstanding concerns about the law’s feasibility with their operations and how to address what they may see as unreasonable requests under the law are encouraged to consult with their employment and labor attorney before taking adverse action against an employee. 

How HR Works Can Help 

HR Works is currently reviewing/updating our New York Lactation Accommodation policy and will notify current Virtual Helpline and HR Strategic Services clients when the policy becomes available. In the interim, current clients who have questions regarding these changes may contact the Virtual Helpline or your designated HR Consultant. 

Non-HR Works clients may reach out to learn more about HR Works’ services including employee handbooks by visiting our website and completing a “Contact Us” form or calling us toll-free at 1-877-219-9062. 

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.