Nursing mothers in New York have the right, under both federal and state laws, to take breaks during work to express breastmilk. These laws are important because they allow nursing women to take necessary breaks without worrying about jeopardizing their jobs, they reinforce the importance of appropriate conditions for nursing mothers, and they help reassure women who are concerned about having to choose between advancing a career or forming a family.
Federal requirements for breastfeeding employees
The Fair Labor Standards Act (FLSA) establishes federal break requirements for nursing women who need to express milk at work. These requirements under the FLSA apply across the board to employers with at least 50 employees. For employers with fewer than 50 employees, the requirements apply unless it would cause them “undue hardship,” considering the nature, size and financial health of the business and the cost and difficulty of compliance.
The main FLSA provisions include:
- A covered employer must give a nursing employee “reasonable” break time to express breastmilk until the nursing infant is one year old. These breaks may be irregular and of varying lengths, depending on the mother’s needs.
- During a break to express breastmilk, the employee must have no work duties.
- This break time is unpaid, but if the employee uses regularly paid break time to express milk, the employer must pay regular compensation for the break.
- The employer must provide a private and functional place that is not a bathroom, to express milk where no one can enter.
If an employer discriminates or retaliates against an employee for complaining about violations of these provisions, the employee can bring suit against the employer for retaliation.
New York provides greater protections
The FLSA does not preempt (i.e. trump or negate) state laws with more generous protections, like New York’s Labor Law (NYLL). Some significant New York protections that differ from federal protections include:
- All private and public employers in the state are covered.
- The employer must offer reasonable, unpaid break time for expressing breastmilk for up to three years after the child is born.
- The designated space for expressing milk must be near the employee who needs it.
- Employers must give notice of these rights to employees after they give birth, and employees wishing to use this benefit must give the employer advance notice.
- The employee may make up the unpaid break time before or after her shift if within regular work hours.
- The employer may only keep the employee from a scheduled break to express milk for up to 30 minutes while waiting for “appropriate coverage.”
- All employers must make “reasonable efforts” to provide the appropriate, private location for expressing milk, which they must supply unless it would be “significantly impracticable, inconvenient, or expensive.” If the employer cannot provide a dedicated space, it may designate a private office, or a seven-foot-tall cubicle. The difficulty of finding a location is not a reason to deny the mother her right to these breaks.
- Discrimination against an employee who expresses breastmilk at work is prohibited, as is a work environment “hostile” to a mother’s need to express milk.
New York employees and employers alike with questions about compliance with these laws or who face violation of these standards should consult an experienced employment law attorney.