Effective June 19, 2024, New York employers will be required to provide up to 30 minutes of paid lactation breaks to employees each time an employee has a reasonable need to express breast milk at work. This change to New York Labor Law Section 206-c is set forth in Bill No. A08806C, part of the New York State budget bill, which Governor Kathy Hochul signed into law on April 19, 2024. Specifically, amended Section 206-c provides:
An employer shall provide paid break time for thirty minutes, and permit an employee to use existing paid break time or meal time for time in excess of thirty minutes, to allow an employee to express breast milk for such employee's nursing child each time such employee has reasonable need to express breast milk for up to three years following child birth. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.
Since the amendment to Section 206-c was enacted, the New York State Department of Labor (NYSDOL) has updated its Frequently Asked Questions to address the new pay requirement, and has also updated its Policy on the Rights of Employees to Express Breast Milk in the Workplace, which employers are required to provide employees upon hire and annually thereafter, and to employees upon returning to work following the birth of a child. Among the information set forth in the Policy, it states: "[e]mployers must provide thirty (30) minutes of paid break time for their employees to express milk when the employee has a reasonable need to express breastmilk."
The NYSDOL also published two fact sheets regarding the amendment for employees and employers. Per the employee fact sheet, "[u]nder New York State Law, all employees are entitled to 30 minutes of paid break time each time they reasonably need to express breast milk." There is a separate fact sheet for employers.
The NYSDOL's FAQs further clarify that employers must accommodate employees whenever they reasonably need to take a break and that "[t]he number of break times needed throughout the day will be unique to each individual employee." This is a change to the previous guidance, which stated that one break every three hours was reasonable.
Prior to this recent amendment, Section 206-c had required New York employers to provide reasonable unpaid break time as well as to permit employees to use any existing paid break time or meal time to express breast milk.
The change to Section 206-c taking effect June 19, 2024 stands on top of an earlier 2023 amendment to Section 206-c that required New York employers, among other things, to provide a private room or space for employees to express breast milk (the room or space must contain (1) a chair; (2) a working surface; (3) nearby access to clean running water; and, if the workplace has electricity, (4) an electrical outlet, unless having same presents an undue hardship for an employer).
Pregnant Employees Entitled to Prenatal Personal Leave as Well
The new amendment to Section 206-c accompanies a recent amendment to New York Labor Law Section 196-b, which mandates New York employers provide up to 20 hours of paid leave for pregnant employees to attend prenatal medical appointments and procedures starting January 1, 2025.
Pregnant Workers Fairness Act
This new amendment to Section 206-c also follows the EEOC's recent release of its 408-page final rule and interpretive guidance on implementation of the Pregnant Workers Fairness Act (PWFA). In connection with lactation accommodations, the PWFA final rule and interpretive guidance prohibits an employer from seeking supporting documentation for lactation accommodations, and specifically contemplates that a lactation accommodation can include permitting the employee to nurse during work hours where the child "is in close proximity" to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.
Conclusion
Protections afforded to pregnant employees and employees who need to express breast milk remain a priority in many jurisdictions, and New York is among the leaders in pushing the rights and entitlements for these employees forward in a number of ways.
In light of the changes to lactation accommodations discussed above, New York employers should consider working closely with counsel to update their lactation accommodation and leave policies and practices to reflect the recent changes to New York law.
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