Recent Amendments to New York Law on Nursing Mothers Rights in the Workplace

January 21, 2016

by Ola A. Nunez

New York employers should take note of recent amendments to the New York Public Health Law, which includes provisions applicable to employers with nursing employees. These amendments help to clarify or otherwise supplement existing New York law. By way of brief background, New York State first enacted a law in 2007 that provided nursing mothers with the right to express breast milk during the workday at their place of employment. This law preceded the 2010 amendment to the Fair Labor Standards Act, which requires covered employers to provide reasonable break times for nursing or breastfeeding mothers to express breast milk, sometimes referred to as “lactation breaks.”

Section 206-c of the New York Labor Law (“Labor Law”), enacted in August 2007, requires employers to provide reasonable unpaid break time to an employee, or allow the employee to use paid break time or meal time, to express breast milk for her nursing child, for up to three years from the birth of the child. The law also requires that employers make reasonable efforts to provide nursing mothers with a room or location in close proximity to the work area, so that the employee can express milk in privacy. The state Department of Labor, which is responsible for administering this law, has set forth guidelines regarding, among other items, the notice requirements imposed on employers and employees with respect to one another related to lactation breaks, the minimum amount and frequency of break time depending on the location provided to the employee to express breast milk (which can never be the restroom or toilet stall), and what constitutes reasonable efforts and “close proximity” under Section 206-c of the Labor Law. Discrimination and retaliation against an employee who avails herself of the rights provided under the Labor Law is also expressly prohibited. The guidelines also make suggestions to employers, such as allowing breastfeeding mothers with children in on-site daycare to take breaks to breast feed in lieu of pumping, and to provide a sink to wash tubing for pumping breast milk.

In 2009, New York State enacted Section 2505-a of the Public Health Law, which provided a detailed “Breastfeeding Mothers’ Bill of Rights.” The Breastfeeding Mothers’ Bill of Rights mostly addressed rights with respect to mothers interacting with health care providers and facilities. However, Section 2505-a was recently amended on November 21, 2015, to incorporate Section 206-c of the Labor Law. Specifically, the Breastfeeding Mothers’ Bill of Rights now advises mothers of: (1) the right to take reasonable unpaid breaks at work to pump breast milk for up to three years following childbirth as provided in Section 206-c; (2) the requirement that employers must take reasonable efforts to provide a room or other private location to express breast milk; (3) the prohibition on discrimination based on the decision to express breast milk at work; and (4) any complaints can be directed to the Department of Labor. This amendment became effective January 1, 2016.

Section 2505-a was initially amended as part of a three-part amendment to the Public Health Law, made effective on November 20, 2015. As part of that amendment, the Breastfeeding Mothers’ Bill of Rights provided an employee with the right to breastfeed her child at her place of employment, “in an environment that does not discourage breastfeeding or the provision of breast milk.” However, that language was not included in the subsequent amendment signed into law the following day, appearing to set a year-end expiration of the requirement that employers must allow an employee to breastfeed her child at work.

Finally, as part of the November 20, 2015, amendment to the Public Health Law, Section 2505 was amended to empower the commissioner to conduct educational activities “to encourage and facilitate employers . . . to establish environments that do not discourage breastfeeding and the provision of breast milk,” such as providing sanitary locations for breastfeeding and refrigerators for storing expressed breast milk. Employers with employees in New York State should update their policies as necessary and contact legal counsel with any questions.