Guidelines Regarding the Rights of Nursing Mothers to Express Breast Milk in the Work Place
Section 206-c of the New York State Labor Law provides as follows:
Right of Nursing Mothers to Express Breast Milk:
An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace.
This law is applicable to all public and private employers in New York State, regardless of the size or nature of their business. In administering this statute, the Department applies the following interpretations and guidelines:
A. Employers shall provide written notification of the provisions of Labor Law §206-c to employees who are returning to work, following the birth of a child, and their right to take unpaid leave for the purpose of expressing breast milk. Such notice may either be provided individually to affected employees or to all employees generally through publication of such notice in the employee handbook or posting of the notice in a central location.
B. An employee wishing to avail herself of this benefit is required to give her employer advance notice. Such notice shall preferably be provided to the employer prior to the employee’s return to work following the birth of the child in order to allow the employer an opportunity to establish a location and schedule leave time amongst multiple employees if needed.
II. Reasonable Unpaid Break Time
A. Reasonable unpaid break time is sufficient time to allow the employee to express breast milk. Each break shall generally be no less than twenty minutes. If the room or other location is not in close proximity to the employee’s work station (e.g. as in a shared work location with a common lactation room) each break shall generally be no less than thirty minutes. Employees can elect to take shorter unpaid breaks for this purpose.
B. The number of unpaid breaks an employee will need to take for expression purposes varies depending on the amount of time the employee is separated from the nursing infant and the mother’s physical needs. In most circumstances, employers shall provide unpaid break time at least once every three hours if requested by the employee.
C. Upon election of the employee, unpaid break time may run concurrently with regularly scheduled paid break or meal periods.
D. Upon election of the employee, an employer shall allow the employee to work before or after her normal shift to make up the amount of time used during the unpaid break time(s) for the expression of breast milk so long as such additional time requested falls within the employer’s normal work hours.
E. This benefit is available to the employee during their basic work week and any overtime or additional hours worked.
F. An employee may be required to postpone scheduled unpaid break time for no more than thirty minutes if she cannot be spared from her duties until appropriate coverage arrives.
III. Reasonable Efforts and Privacy
A. All employers are required to make reasonable efforts to provide a private room or other location for the purpose of expression of breast milk. “Reasonable effort” requires that the room or other location must be provided for use of employees expressing breast milk so long as it is neither significantly impracticable, inconvenient, or expensive to the employer to do so. Relevant factors in determining significant impracticality, inconvenience, or expense include but are not limited to:
1. The nature of work performed at the business;
2. The overall size and physical layout of the business;
3. The type of facility where the business is housed;
4. The size and composition of the employer’s workforce;
5. The business’ general hours of operation and the employees’ normal work shifts;
6. The relative cost of providing a room or other space for the dedicated purpose.
B. The room or location provided by the employer for this purpose cannot be a restroom or toilet stall.
C. An employer may dedicate one room or other location for the expression of breast milk and establish a schedule to accommodate the needs of multiple employees needing access thereto.
D. An employer who is unable to provide a dedicated lactation room or other location under these guidelines, may allow the use of a vacant office or other available room on a temporary basis for the expression of breast milk, provided the room is not accessible to the public or other employees while the nursing employee is using the room for expression purposes.
E. As a last resort, an employer who is unable to provide a dedicated lactation room or other location under these guidelines may make available a cubicle for use by individuals expressing breast milk, provided the cubicle is fully enclosed with a partition and is not otherwise accessible to the public or other employees while it is in use for expression purposes. The cubicle walls shall be at least seven feet tall to insure the nursing employee’s privacy.
F. Each room or other location used for the expression of breast milk under these guidelines shall be well lit at all times through either natural or artificial light. If the room has a window, it shall be covered with a curtain, blind, or other covering to ensure privacy for the mother as she is expressing breast milk. The room shall contain, at a minimum, a chair and small table, desk, counter, or other flat surface. In addition, employers are encouraged to provide an outlet, clean water supply, and access to refrigeration for the purposes of storing the expressed milk.
G. An employer is not responsible for insuring the safekeeping of expressed milk stored in any refrigerator on its premises. The employee is required to store all expressed milk in closed containers, regardless of the method of storage and to bring such milk home with her each evening.
H. The employer must maintain the cleanliness of the room or location set aside for the use of employees expressing breast milk at work.
I. An employer may not deny an employee this benefit due to difficulty in finding a location for purposes of the same.
J. For the purposes of this provision: “Private” shall mean that the room or other location shall not be open to other individuals frequenting the business, whether as employees, customers, or other members of the public. To insure privacy, the room or location should have a door equipped with a functional lock. If a door with a functional lock is not available (in the case of a fully enclosed cubicle) as a last resort an employer must utilize a sign advising the room or location is in use and not accessible to other employees or the public.
IV. Close Proximity
A. Any room or location provided for the expression of breast milk must be in close proximity to the work area of the employee(s) using it for the expression of breast milk.
B. Close proximity means the room or location must be in walking distance and the distance to the location should not appreciably lengthen the break time.
C. Should an employer have more than one employee at a time needing access to a lactation room or other location, the employer may dedicate a centralized location for use by all such employees, provided however, that the employer shall make every effort to locate such space at a reasonable distance from the employees using it.
D. Employers located in shared work areas such as office buildings, malls, and similar premises may cooperate with one another to establish and maintain a dedicated lactation room, provided however, that such rooms must be located at a reasonable distance from the employees using the room. Each employer utilizing such common dedicated lactation room will retain individual responsibility for ensuring that it meets all the requirements of these guidelines with regard to their employees. Use of a common dedicated lactation room pursuant to this paragraph will not reduce, mitigate, or otherwise affect the employer’s obligations under these guidelines.
No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace. Encouraging or allowing a work environment that is hostile to the right of nursing mothers to take leave for the purpose of expressing breast milk could constitute discrimination within the meaning of this section of the guidelines.
VI. Suggested Employer Activities
A. In addition to the activities set forth in the guidelines above, an employer may consider implementing one or more of the following activities in connection with the needs of employees who are breast feeding children.
1. Providing educational information in the lactation room or area regarding the benefits of breastfeeding and tips on expressing and storing breast milk including posters, newsletters, books, and referral information to health education programs about breastfeeding.
2. Allowing flexible work hours, job sharing, and/or part-time scheduling to accommodate employees with children of nursing age.
3. Providing an easily accessible sink to wash tubing used for pumping breast milk.
4. Allowing mothers of nursing children attending on-site day care to take breaks to breast feed in lieu of pumping.
5. Providing a listing of lactation consultants whom breastfeeding mothers could contact for assistance.
6. Including protection for pregnant and breastfeeding mothers in the company’s sexual harassment policy.
7. Designation of a breastfeeding coordinator to allow consistent and coordinated implementation of this benefit in the workplace.
B. Not all questions can be anticipated; therefore these guidelines may not cover all situations that may arise. For additional assistance or information please contact the Division of Labor Standards office nearest you.