BLOG | Right to Express Breast Milk
Elefante & Persanis, LLP – Right to Express Breast Milk Policy – July 2024
New York State recognizes that employees may require reasonable accommodations to express breast milk in the workplace. In following with New York State’s Labor Law Section 206-C, CLC Group has created a policy that allows its employees to express breast milk in the workplace.
The purpose of this policy is to: (a) outline how much time employees are allowed for breast milk expression (b) define the kind of space is required to provide for break milk expression, (c) explain how to notify your employer about the need to express breast milk, and (d) explain how to notify the Department of Labor if an employee’s rights are not being honored.
This policy applies to all employees, including full-time, part-time, and/or per diem employees., regardless of Employer size.
The Employer must provide thirty (30) minutes of paid break time for employees to express breast milk when the employee has a reasonable need to express breast milk. Employees must 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.
The 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. 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. 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.
The employer 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
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, the Employer must allow employees to use it to store breast milk. The Employer is 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 always be maintained and clean. If the 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, the Employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location.
Employees must give the Employer reasonable advance notice, generally before returning to the workplace if the employee is on leave, if they have a need to express breaks milk in the workplace. This advance notice allows 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 and/or Human Resources. An employee’s direct supervisor and/or Human Resources must respond to this request for a room or other location to express breast milk in writing within five (5) days. The employee’s supervisor(s) will be notified immediately of the employee’s request to ensure proper accommodation and staffing needs are covered and the direct supervisor and/or Human Resources must notify all employees in writing through email or printed memo when a room or other location has been designated for breast milk expression.
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.govcreate new email, or visit our website at dol.ny.gov/breast-milk- expression-workplace to file a complaint. A list of our offices is available at opens in a new windowdol.ny.gov/location/contact-division-labor-standards. Complaints are confidential.
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 opens in a new windowdol.gov/agencies/whd/pump-at-work.