New York City Issues Model Lactation Room Policies and FAQs to Help Employers Comply with New Requirements

The New York City Commission on Human Rights has released model policies and FAQs in conjunction with two newly-effective lactation room laws (Local Law Nos. 185 and 186), which apply to employers with four or more employees. These laws expand upon existing requirements under the New York Labor Law, by setting minimum standards for lactation rooms and requiring that employers distribute a written policy about lactation room use.

The Commission was expected to release its model policies prior to the March 18, 2019, effective date of the new lactation room laws. The Commission’s materials, however, were not released until after the laws took effect. The Commission has signaled in its model policies that employers must implement their lactation room policy “[s]tarting March 2019” (i.e., by the end of the month).

New Lactation Room Requirements

New York Labor Law Section 206-c requires employers to provide “a room or other location, in close proximity to the work area, where an employee can express milk in privacy.”

Local Law No. 185 adds a specification that such room must be “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” Local Law No. 185 further requires that a refrigerator suitable for breast milk storage be situated in reasonable proximity to the employee’s work area. Further, Local Law No. 185 requires that, at a minimum, the lactation room include:

1. An electrical outlet;
2. A chair;
3. A surface on which to place a breast pump and other personal items; and
4. Nearby access to running water.

An employer may designate a multi-purpose room to be used as a lactation room, provided that, while an employee is using the room to express breast milk: (a) the sole function of the room shall be as a lactation room; and (b) the employer must notify other employees that the room is given preference for use as a lactation room.

Notably, an employer must provide a lactation room under these new laws unless it can show that doing so would pose an undue hardship to the employer. Additionally, if providing a lactation room would create an undue hardship, the employer must engage in a cooperative dialogue with the employee to identify an alternative accommodation that will accommodate the employee’s need to express breast milk while working.

Required Notice to Employees

Local Law No. 186 requires employers to develop and implement a written policy regarding lactation rooms. Such policy must include a statement that employees have a right to request a lactation room, and it must identify a process by which they may do so. Specifically, the policy must:

1. Specify the means by which an employee may submit a request for a lactation room;
2. Require that the employer respond to a request for a lactation room within a reasonable amount of time, not to exceed five business days;
3. Provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow-up required;
4. State that the employer shall provide reasonable break time for an employee to express breast milk pursuant to Section 206-c of the Labor Law; and
5. State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.

Such written policy must be distributed “to all employees upon hiring.”

Pursuant to Local Law No. 186, the New York City Commission on Human Rights has developed model policies that employers may use to comply with their requirements under this new law. These model policies address situations where the employer has a dedicated lactation room, a multi-purpose room that may be used for lactation, or no available space for a lactation room. The Commission has explained, in FAQs published on its website, (see https://www1.nyc.gov/site/cchr/law/lactation-faqs.page) that the model policies are a guide that employers may use to write their own policies. Employers are not required to use the Commission’s model policies; however, they must ensure that their policies address the five requirements set forth in the law (see Nos. 1-5 above).

Next Steps

Employers must prepare a written lactation room policy and begin distributing it to their new employees. Employers should also review the space(s) they plan to offer to employees to accommodate their lactation needs and ensure that these spaces meet the requirements of a lactation room under this new law. Additionally, employers must ensure that no individual is harassed, discriminated against, or retaliated against for inquiring about or using a lactation accommodation.

Please do not hesitate to contact any of our attorneys if you have any questions regarding the new requirements in these laws or would like assistance in reviewing and updating your policies.