Pursuant to state and federal law, employers including school districts must provide certain accommodations to their workers that allow them to attend to family duties without fear of negatively impacting their job status or opportunities. One category of protected employee, whose entitlement to such accommodations has often been overlooked or misapplied, is nursing mothers.
The applicable laws and amendments were enacted within the past 15 years. Although these statutes are relatively new, school administrators should be familiar with their requirements, which may present scheduling and other issues that may be challenging to address in a school environment.
Employees who are breastfeeding require time, space and storage areas to express (pump) breast milk for their infants. The visibility of this need has increased in recent years, as have complaints of discrimination by employee-mothers who have suffered negative employment actions after asserting their rights for accommodations related to lactation.
A bill awaiting the governor’s signature would expand protections for nursing mothers (see sidebar).
This article provides an overview of the applicable law and advice regarding implementation of the required accommodations.
New York law provides express and concrete legal protections for nursing mothers in the workplace. Section 206-c of the state Labor Law, which applies to all employers in the state, describes the accommodations that an employer must afford to nursing employee-mothers who wish to express breast milk. Also, the New York Department of Labor has issued guidelines (see https://labor.ny.gov/formsdocs/wp/LS702.pdf). Key accommodations include:
Time. An employee must be allowed to take unpaid break time (or, if she wishes, use paid break or meal time) at least once every three hours for at least 20 minutes per session. An employee who uses unpaid break time must be allowed to make up this work time before or after her normal shifts as long as said time falls within the employer’s normal work hours. In a school setting, this may present scheduling difficulties, especially in the case of a teacher. However, use of non-teaching time and/or coverage can often resolve problems.
Space. The law requires an employer to make reasonable efforts to provide a private area close to the employee’s work area. The Department of Labor has interpreted this provision to require an employer to provide a lockable, well-lit private space with a chair and flat surface, an electrical outlet and a refrigerator for the employee to store milk. (Bathrooms, which historically were the only spaces available to many nursing employee-mothers, are not considered a reasonable accommodation.)
Notice. Employers must give notice of section 206-c, either to individual employees or general distribution. An employee who wishes to avail herself of the available accommodations must give prior notice to the employer. The school district should identify the approximate amount of lead time it will reasonably need and include such information in the legal notice it provides.
Department of Labor guidelines and a fact sheet (https://labor.ny.gov/formsdocs/factsheets/pdfs/p709.pdf) state that nursing mothers are entitled to workplace accommodations for the first three years following an employee’s child’s birth. The department has urged employers to have plans and systems in place to coordinate the needs of multiple nursing mother-employees in the workplace, if need be, and its guidance stresses good-faith efforts to accommodate an employee’s needs.
Disagreements may arise on whether the accommodation offered by an employer fulfills all legal obligations under state law. Significantly, the state guidance states that a “reasonableness” standard applies to the mandate that the employer provide a space for milk expression. A school district or other employer is not required to meet the physical space standards delineated by the Department of Labor if doing so would be “significantly impracticable, inconvenient, or expensive.”
Local laws may also apply. In 2018, the City of New York passed laws further strengthening nursing employee rights for employers with four or more employees. New York City Local Laws 185 and 186 modify the city’s Administrative Code §8-102 et seq. to define lactation room requirements and require reasonable lactation breaks. Significantly, the laws require that the employer “engage in a cooperative dialogue” (as defined in the code) with the employee should the room’s provision cause an “undue hardship.” Also, employers must have written lactation accommodation policies.
Federal law also provides protections for nursing mother-employees, though to a lesser degree than New York law. The Fair Labor Standards Act contains the Reasonable Break Time for Nursing Mothers (RBTNM) provision [29 U.S.C. § 207(r)], which delineates reasonable break time for nursing mother-employees to express milk.
While New York law requires employers to “make reasonable efforts to provide a room or other location” with certain characteristics, the RBTNM requires the employer provide a space that’s private, shielded from view, and not a bathroom. However, the RBTNM does not apply to teachers; it only applies only to non-exempt hourly workers. It grants protections for only one year after the child’s birth and does not apply to employers with 50 or fewer employees who can claim “undue hardship.”
If an employee feels her federal rights as a breastfeeding mother have been violated, she can file a lawsuit under the federal Pregnancy Discrimination Act [42 U.S.C. § 2000e(k)]. While this law provides explicit protection for pregnancy- and childbirth-related conditions, an employee may assert that it also covers milk expression by nursing employees.
However, the applicability of the Pregnancy Discrimination Act to workplace pumping in New York has yet to be firmly established by the courts.
As a practical matter, the accommodations offered to employees may need to vary from building to building and/ or on an individual basis, depending on the nature of the affected employee’s job requirements. Districts are advised to consult with legal counsel before finalizing practices and procedures for legal compliance, particularly with regard to employees covered under collective bargaining agreements.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Joanna M. Caccavo of Jaspan Schlesinger, LLP.