Introduction and Purpose

 

New York State Labor Law Section 206-c gives all employees in New York the right to express breast milk in the workplace. This law applies to all public and private employers in New York State, regardless of size or the nature of their business.

 

The New York State Department of Labor has developed the official policy on breast milk expression in the workplace as required by the law, ensuring that all employees know their rights and all employers understand their responsibilities. This policy is the minimum required standard, but employers are encouraged to include additional accommodations tailored to their workplace.

 

With the information provided below, employees will learn how much time they are allowed for breast milk expression, the kind of space employers are required to provide for breast milk expression, how to notify employers about the need to express breast milk in the workplace, and how to notify the Department of Labor if these rights are not honored.

 

Employers are required to provide this policy in writing to all employees when they are hired and again every year after. Employers are also required to provide the policy to employees as soon as they return to work following the birth of a child.

 

Using Break Time for Breast Milk Expression

 

Employers must provide thirty (30) minutes of paid break time for their employees to express breast milk when the employee has a reasonable need to express breast milk. Employees must also be permitted to use existing paid break or mealtime if they need additional time for breast milk expression beyond the paid 30 minutes. This time must be provided for up to three years following childbirth. Employers must provide paid break time as often as an employee reasonably needs to express breast milk. The number of paid breaks an employee will need to express breast milk is unique to each employee and employers must provide reasonable break times based on the individual. Employers are prohibited from discriminating in any way against an employee who chooses to express breast milk in the workplace.

 

An employer is prohibited from requiring an employee to work before or after their normal shift to make up for any time used as paid break time to express breast milk.

 

All employers must continue to follow existing federal and state laws, regulations, and guidance regarding mealtimes and paid break time regardless of whether the employee uses such time to express breast milk. For additional information regarding what constitutes a meal period or a break period under state and federal law, please see the following resources:

 

• NY Department of Labor Website on Day of Rest, Break Time, and Meal Periods: dol.ny.gov/day-rest-and-meal-periods
• NY Department of Labor FAQs on Meal and Rest Periods: dol.ny.gov/system/files/documents/2021/03/meal-and-rest-periods-frequently-asked-questions.pdf
• U.S. Department of Labor FLSA FAQ on Meal and Rest Periods: dol.gov/agencies/whd/fact-sheets/22-flsa-hours-worked
• U.S. Department of Labor FLSA Fact Sheet on Compensation for Break Time to Pump Breast Milk: dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers

 

While an employer cannot require that an employee works while expressing breast milk, Labor Law 206-c does not otherwise prevent an employee from voluntarily choosing to do so if they want to.

Paid breaks provided for the expression of breast milk must be 30 minutes. An employee must be allowed to use regular break or mealtime to take a longer paid break if needed. Employees may also opt to take shorter paid breaks.

 

Employees who work remotely have the same rights to paid time off for the purpose of expressing breast milk, as all other employees who perform their work in-person.

 

Making a Request to Express Breast Milk at Work

 

If an employee wants to express breast milk at work, they must give the employer reasonable advance notice, generally before returning to the workplace if the employee is on leave. This advance notice is to allow the employer time to find an appropriate location and adjust schedules if needed.

 

Employees wishing to request a room or other location to express breast milk in the workplace should do so by submitting a written request to their direct supervisor or individual designated by their employer for processing requests. Employers must respond to this request for a room or other location to express breast milk in writing within five days.

 

Employers must notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.

 

Lactation Room Requirements

 

In addition to providing the necessary time during the workday, employers must provide a private room or alternative location for the purpose of breast milk expression. The space provided for breast milk expression cannot be a restroom or toilet stall.

 

The room or other location must:

 

• Be close to an employee’s work area
• Provide good natural or artificial light
• Be private – both shielded from view and free from intrusion
• Have accessible, clean running water nearby
• Have an electrical outlet (if the workplace is supplied with electricity)
• Include a chair
• Provide a desk, small table, desk, counter or other flat surface

 

There does not need to be a separate space for every nursing employee. An employer may dedicate a single room or other location for breast milk expression. Should there be more than one employee at a time needing access to a lactation room, an employer may dedicate a centralized location to be used by all employees.

 

Any space provided for breast milk expression must be close to the work area of the employee(s) using the space. The space must be in walking distance, and the distance to the location should not significantly extend an employee’s needed break time.

 

Employers located in shared work areas, such as office buildings, malls and similar spaces may work together to establish and maintain a dedicated lactation room, as long as such space(s) are a reasonable distance from the employees using the room. Each employer utilizing this common space is individually responsible for making sure the room meets the needs of their employees.

 

If there is not a separate room or space available for lactation, an employer may use a vacant office or other available room on a temporary basis. This room must not be accessible to the public or other employees while an employee is using it for breast milk expression.

 

As a last resort, an available cubicle may be used for breast milk expression. A cubicle can only be used if it is fully enclosed with a partition and is not otherwise accessible to the public or other employees while being used for breast milk expression. The cubicle walls must be at least seven feet tall to insure the employee’s privacy.

 

To ensure privacy, if the lactation room has a window, it must be covered with a curtain, blind or other covering. In addition, the lactation space should have a door equipped with a functional lock. If this is not possible (such as in the case of a fully enclosed cubicle), as a last resort, an employer must utilize a sign advising the space is in use and not accessible to other employees or the public.

 

If the workplace has a refrigerator, employers must allow employees to use it to store breast milk. However, employers are not responsible for ensuring the safekeeping of expressed milk stored in any refrigerator in the workplace.

 

Employees are required to store all expressed milk in closed containers and bring milk home each evening.

 

The space designated for expressing breast milk must be maintained and clean at all times.

 

If an employer can demonstrate undue hardship in providing a space with the above requirements, the employer must still provide a room or other location - other than a restroom or toilet stall - that is in close proximity to the work area where an employee can express breast milk in privacy, that meets as many of the requirements as possible.

 

Undue hardship is defined in the statute as “causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” However, an employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location.

 

New York State Department of Labor Resources

 

If an employee believes that they are experiencing retaliation for expressing breast milk in the workplace, or that their employer is in violation of this policy, they should contact the New York State Department of Labor’s Division of Labor Standards. Call us at 1-888-52-LABOR, email us at LSAsk@labor.ny.gov, or visit our website at dol.ny.gov/breast-milk-expression-workplace to file a complaint.

 

A list of our offices is available at dol.ny.gov/location/contact-division-labor-standards.

 

Complaints are confidential.

 

Federal Resources

 

The federal PUMP Act went into effect in 2023, expanding protections for almost all employees expressing breast milk at work. Under the PUMP Act, any covered workers not provided with breaks and adequate space for up to a year after the birth of a child are able to file a complaint with the U.S. Department of Labor or file a lawsuit against their employers. For more information, please visit dol.gov/agencies/whd/pump-at-work.

 

Ref:     29 USC §218d (Breastfeeding Accommodations in the Workplace)

Labor Law §206-c