Federal and New York State Guidance Issued on Rights of Nursing Employees

Employers may recall that at the close of 2022, a flurry of federal and state legislation concerning the rights of nursing employees was enacted. This legislation included the federal PUMP Act, which expanded nursing employees’ access to break time and space to express breast milk under the Fair Labor Standards Act, and an amendment to the New York State Labor Law, which expanded accommodations and protections for nursing employees. The US Department of Labor and NYS Department of Labor both released guidance further clarifying the impact of the new laws.

DOL Guidance on the PUMP Act

On May 17, 2023, the DOL’s Wage and Hour Division issued guidance on the PUMP Act. This guidance addresses break time requirements, compensation, and lactation room requirements under the Act.

Break Time

The PUMP Act requires that an employer provide reasonable break time for an employee to express breast milk each time the employee has a need to express milk. The guidance provides more color on the practical application of this requirement and clarifies that the frequency, duration, and timing of needed breaks will vary depending on the needs of the employee, and that the location of the lactation space and/or the pump setup in the lactation space can impact the break time an employee may need. The guidance also notes that an employee and employer may agree to a pumping schedule. However, the guidance states that an employer cannot require an employee to adhere to the fixed schedule if the employee needs a break to pump outside upon the agreed upon schedule. In addition, the schedule may need to change overtime as the employee’s need to pump changes. The guidance also notes that the requirements concerning break time apply to remote workers in the same way that they apply to workers on-site.

Compensation

Generally, the PUMP Act does not require that employees be compensated for break time to express break milk. However, the guidance clarifies that break time to express breast milk will be considered hours worked if an employee is not completely relieved from duty during the entirety of the break. Additionally, if the employer provides paid break time and the employee chooses to use that time to express breast milk, the employee must be compensated in the same way that other employees are compensated for break time. Employers also cannot deduct the time used for pump breaks from an exempt employee’s salary.

Lactation Space

The guidance expands upon the PUMP Act’s requirements for a lactation space. The PUMP Act requires that a lactation space be “a place other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” The guidance adds that this space must be “a functional space for pumping” and include “a place for the nursing employee to sit and a flat surface, other than the floor, on which to place the pump.” The guidance also notes that ideally the space would include access to electricity and sinks nearby.

The guidance does provide employers with some flexibility in designing a lactation space, as it recognizes that employers’ approaches to such a space or room may differ.  However, it makes clear that privacy is a requirement, and employers must ensure privacy in any approach they select. The guidance suggests a few different methods an employer can use to ensure privacy, such as the use of locks for a private room, signage advising the space is in use, and the use of partitions or privacy screens.

Posting Requirements

Employers should also be aware that the DOL updated its Minimum Wage Poster to include information on employees’ rights under the PUMP Act. Employers must replace their old version of the poster with the new version.

NYS Model Lactation Accommodation Policy

The amendment to the New York State Labor Law expanding accommodations and protections for nursing employees took effect on June 7, 2023. The NYS DOL also released a model policy concerning lactation accommodations under the amended law. Under the amended law, employers must provide the model policy to all new employees upon hire; all employees annually thereafter; and employees upon their return to work following the birth of a child, regardless of whether employers have an existing written lactation accommodation policy. The model policy largely mirrors the amended law, and also includes language instructing employees on how to complain about and/or file actions concerning violations of the amended law and the PUMP Act. It also states in bold that “an employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location.” “Finding a location” is not language from the amended law, but the use of this language in the model policy may signal how the NYS DOL will analyze an undue hardship defense under the amended law.

Employer Takeaways

Employers should ensure that their lactation accommodation policies comply with the new guidance and that they are complying with all required notice provisions under these laws. Specifically, employers should update their DOL Minimum Wage Poster and New York employers should have practices in place to ensure that the new model policy is provided to new and existing employees at the required times. Employers with questions about their lactation accommodation policies and practices should contact Caroline Secola at csecola@fglawllc.com or any attorney at the firm.

DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.