Lactation Accommodation Handbook Statement: New York

Author: Amy E. Mendenhall and Susie Wine, Littler

When to Include

New York employers should consider including this statement in their handbook to encourage and demonstrate compliance with and support for New York's Nursing Mothers in the Workplace Act, which requires that employers provide paid break time and a private location for employees to express breast milk.

Employers must provide employees with written notice of this law upon hiring and upon returning to work after the birth of their child. It must also be distributed to each employee annually. Such notice may be given to each returning employee or to all employees through the employer's employee handbook or a centralized posting.

The written notice must:

  • Inform employees of their rights provided by New York lactation accommodation law;
  • Provide a description of how an employee may submit a request to the employer for a room or other location to express breast milk; and
  • Explain the requirement that an employer must respond to employee requests within a reasonable timeframe not to exceed five business days.

Customizable Handbook Statement

Lactation Accommodation

The Company provides paid break time for an employee to express breast milk for their nursing child for up to three years following the birth of the child, each time the employee has a reasonable need to express milk. Specifically, nonexempt employees will be provided up to 30 minutes of paid break time to express milk at a time. Employees may take lactation breaks of less than 30 minutes if they choose. 

Employees who need more than 30 minutes for a lactation break may use existing paid break time, use scheduled meal periods or may otherwise receive additional unpaid lactation break time under applicable law for a lactation break that may exceed 30 minutes. [Optional: Nonexempt employees are prohibited from performing any work while on a lactation break, including, but not limited to, checking their work e-mail or engaging in work phone or video calls on a mobile device.] 

Notwithstanding any of the foregoing, exempt employees will be paid for all lactation break time during their workday in accordance with applicable law. 

Employees must provide reasonable, advance written notice to the Company that they intend to take breaks for expressing milk upon returning to work following the birth of the child. Employees should work with their supervisor regarding scheduling of lactation breaks. Nursing parents should specifically provide an estimate of how many lactation breaks will be needed, and if possible, how long the breaks may be and when those breaks may be needed. Where additional lactation breaks are required, or the break schedule needs to be modified from time to time, employees should work with their supervisor regarding scheduling. 

Lactation Room

Employees have the right to request a lactation room for purposes of expressing milk. [Insert if the Company has a dedicated lactation room: The lactation room is located [insert location].] [Insert if the Company does not have a dedicated lactation room: Employees will be informed as soon as practicable when a lactation room or location has been designated.] The lactation room will be a well-lit, sanitary place, other than a restroom or toilet stall, that is shielded from view, free from intrusion and in reasonable proximity to the employee's work area. The lactation room will include [insert if the workplace has electricity: an electrical outlet,] a chair, a working surface area on which to place a breast pump and other personal items, nearby access to running water [insert if the workplace has access to refrigeration: and access to refrigeration to store the expressed milk]. Please note that the Company is not responsible for ensuring the safekeeping of expressed milk stored in any refrigerator on its premises. The employee must store all expressed milk in closed containers, regardless of the method of storage, and should remove such milk at the end of the workday.

To request use of a lactation room, employees can complete a Lactation Room Request Form and submit the form to [insert appropriate submission procedure], or otherwise they may communicate the information requested to [insert contact details, e.g., "Human Resources"]. The Company will respond to the employee's request within a reasonable amount of time, not to exceed five business days. Employees should contact a Human Resources representative [or insert name of appropriate company representative or department] with any follow-up inquiries.

A room identified for use as a lactation room may also be used for other purposes. However, employees' need of a room for lactation breaks will be prioritized, and during times when an employee is using the room as a lactation room, that will be its sole function. When two or more employees need to use the room for lactation purposes or in connection with other accommodations, they should contact and work together with Human Resources [or insert name of appropriate company representative or department] to schedule room usage cooperatively and in a way that accommodates all affected employees. Employees who have questions or concerns related to lactation room scheduling conflicts can also contact [insert contact details].

If providing the requested lactation room will place an undue hardship on the Company's operations, the Company will engage in an interactive process with reasonable efforts to provide a room or location other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express milk in private.

The Company will not demote, terminate, discriminate, retaliate or otherwise take adverse action against an employee who requests or makes use of the accommodations and break time described in this policy.

Pursuant to New York State requirements, attached is a Policy on the Rights of Employees to Express Breast Milk in the Workplace that further explains your rights under New York State law.

Guidance for Employers

  • This statement is intended to be used in conjunction with a national Lactation Accommodation policy statement.
  • Employers subject to the federal Fair Labor Standards Act (FLSA) are required to provide a private place and rest breaks to employees needing to express milk for one year after the child's birth. Employers with fewer than 50 employees are not required to comply with the FLSA's lactation accommodation and break requirements if doing so would impose an undue hardship by causing the employer significant difficulty or expense.
  • Provide nursing employees a reasonable paid break time for 30 minutes or permit the use of paid break or meal time for time in excess of 30 minutes so they may express breast milk for their nursing child, for up to three years following the child's birth. This period of time is significantly longer than the one year required by the FLSA.
  • An employee may take a shorter break if they choose.
  • The New York Department of Labor (NYDOL) guidance states that employees are entitled to take as many 30-minute paid breaks as needed to express milk.
  • NYDOL guidance states that lactation breaks can be taken right before or after a regularly scheduled paid break or meal period. In New York, meal periods should not be moved out of the regular meal period window.
  • According to NYDOL guidance, an employee may be required to provide written notification regarding how many breaks they anticipate needing during the workday. An employee may also include their preferred times to express milk in this notification.
  • If the employer considers the lactation break as non-working time (even if it is paid in part or in full), nonexempt employees should be clearly instructed not to perform any work during the break to avoid that break becoming compensable working time, or time that is counted toward a nonexempt employee's overtime.
  • Provide a room or other location in close proximity to the work area (other than a toilet stall or restroom) that is well lit, shielded from view and free from intrusion by other persons where employees can privately express breast milk. The room must include a chair, a working surface, nearby access to clean, running water, and electricity (if the workplace has an electrical outlet). If the workplace has access to refrigeration, employees must be allowed to store pumped milk there. Provide notice to all employees as soon as practicable once the lactation room or other location has been designated.
  • Ensure that the designated room or location is available to employees for expressing milk when needed and is not used for any other purpose or function during that time.
  • In order to use the lactation room, employers can provide a Lactation Room Request Form. While NYDOL guidance requires the request to be in writing, the U.S. Equal Employment Opportunity Commission (EEOC) has said that information provided by the employee in the interactive process does not need to be in a specific format or on a specific form. 
  • A "reasonable effort" on the part of the employer means that the room or other location must be provided for expression of breast milk so long as it is not significantly impracticable, inconvenient or expensive for the employer to do so. Relevant factors to consider include:
    • The nature of work performed at the business;
    • The overall size and physical layout of the business;
    • The type of facility where the business is housed;
    • The size and composition of the employer's workforce;
    • The business' general hours of operation and the employees' normal work shifts; and
    • The relative cost of providing a room or other space for the dedicated purpose.
  • Some employers have difficulty providing a space that meets the legal requirements. For advice on providing adequate space, consult legal counsel.
  • Do not discriminate or retaliate in any way against an employee who chooses to express breast milk in the workplace.
  • Attach the state's Policy on the Rights of Employees to Express Breast Milk in the Workplace to the handbook
  • Employers may consider implementing a system for tracking the use of lactation areas to account for an employee's time spent on break and to schedule room usage to avoid multiple people needing to use the area at the same time. The U.S. Department of Labor guidelines related to the federal Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act clarifies that an employee's lactation break schedule may change over time.
  • In addition to the New York law that creates employers' obligation to provide lactation accommodation, New York's public health law emphasizes employees' rights to breastfeed their babies at their place of employment in an environment that does not discourage breastfeeding or the provision of breast milk. Notably, this public health law specifically references breastfeeding in the workplace rather than expressing breast milk.
  • Employers should be aware that there are also local lactation accommodation laws in effect in New York State.
  • Employers with four or more employees and employees working in New York City should use the Lactation Accommodation Handbook Statement: New York City, New York to comply with both the New York State and New York City lactation accommodation laws. Suffolk County also has a lactation accommodation law, which is sufficiently similar to the New York State law that it does not warrant a separate policy statement. 
  • Train supervisors, managers and Human Resources on how to handle requests for lactation accommodations.

Additional Resources

Lactation Accommodation Handbook Statement

Lactation/Breastfeeding Breaks and Facility Accommodation Requirements by State and Municipality

Discrimination: New York