Any new mom who has navigated the return to work while still nursing a little one knows that sinking feeling. Searching for the quietest breast pump on the market, in order to pump stealthily in a small cubicle with colleagues 3 feet away. Expressing milk while perched on the edge of a toilet seat. Pumping in a closet next to the janitorial supplies, praying no one walks in. So we’re breathing a collective sigh of relief about New York CIty’s new lactation room law, which went into effect in March 2019. #MindrMama and employment litigator Alex Berke shared her thoughts this new law and the impacts it may have on those of us working-while-pumping.

New York City recently passed a new law that provides clarity to employers and employees regarding what rights mothers have to express milk (most often through pumping) in the workplace. Berke-Weiss Law PLLC is a woman-owned employment law firm in New York. In our practice, we meet employers who are trying to comply with the law, and women who are being discriminated against by their employers. Often, pregnant women and new moms find that their performance is questioned after they announce their pregnancy, or have trouble being accommodated to provide care and sometimes even food for their children who are at home.

What is the new NYC lactation law, and when did/does it come into effect?

New York City’s new lactation law has two components: (1) creating requirements for lactation rooms for employers with four or more employees and (2) requiring employers to create a policy that alerts employees to the existence of the lactation room, and includes the process for requesting lactation-related accommodations.

New York State requires that a lactation room is provided to employees who express milk for up to three years after birth. New York City now joins New York State in offering protections to breastfeeding mothers. 

The NYC law went into effect on March 17, 2019.  Now, employers in NYC with four or more employees must provide a lactation room that allows mothers to express milk shielded from view and free from intrusion. The statewide law encouraged employers to provide specific amenities, but the NYC law now requires the lactation room to include at least:

·       An electrical outlet

·       A surface to place the breast pump and other personal items;

·       Nearby access to running water, and;

·       A refrigerator suitable for breast milk storage.

New York City has released model policies for employers, including a model request form. This process offers guidance for how employers should handle multiple requests from employees who may need to use the designated lactation room at the same time, an outline of the timeframe and process for employers to respond to employee’s requests for accommodation, and an overview of employee’s rights to be paid during the time they use to express milk.

Is this development a big deal for moms in NYC? Why/why not?

This development allows moms to clearly understand their rights relating to expressing milk at work, and provides a way for employees who are having trouble in their workplace exercising their rights to discuss the issues with their employer. Although employers already were obligated to provide some of these accommodations, the new law lays out specifics about what steps employees and employers need to take. The model policies released by the City also go into detail about what is required, and can serve as a useful for resource for employees and employers alike.

There are model lactation room policies that accompany the law -- what do these policies have to say, and how binding are they on employers?

These policies can be found here and can be adapted to meet the specific needs of employers as written. The law does not state specific penalties for not having a policy or a lactation room, but a violation can still create employer liability. Employers who violate the law may be liable for punitive damages, emotional distress, back pay and front pay if there’s a finding of discrimination. In short, if an employer does not have the appropriate policies or lactation rooms, affected employees may have a legal claim against the employer for discrimination, unless the employer can demonstrate that it is an “undue hardship” to provide a room.

What (if any) changes can moms expect to see in their workplaces as a result of this new law and the accompanying policies?

Moms should expect their employers to provide a lactation room policy, a lactation room request form, and that the employers are meeting all of the lactation room requirements. And, moms should expect to have more conversations about what they need to express milk at work. However, some employers still may have an out in providing lactation rooms that meet the standards set by this law. Under the law, employers can say that meeting the lactation room requirements is so challenging that they pose an “undue hardship.” There are standards for what makes something an undue hardship, including the nature and cost of an accommodation, the impact of providing the accommodation on the operation of the facility, or the financial resources of the employer. For example, if the employer only has a space available that is not near a refrigerator, the annoyance of purchasing a mini-fridge would not necessarily be an undue hardship. But, if the space is the only space available and would require re-wiring to accommodate a nearby fridge, that may be considered an undue hardship. If the employer thinks that an accommodation would be an undue hardship, they still need to have a conversation with the employee about other alternatives, and should work to come up with some accommodation that meets the employee’s needs.

What can we expect to see happening next in this space in the workplace and beyond?

When the City implements new laws, we can expect an education campaign to inform people of their new rights. The New York City Human Rights Commission will work on enforcement. We should expect to see more situations where people advocate for their rights in the workplace and seek redress if they are not being met. We anticipate continued efforts by women advocating for more nurturing and friendly lactation spaces, access to having breast milk shipped home from work trips, and insurance coverage for breast pumps that meet their needs.

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