New rules to assure nursing moms privacy, comfort at workplace

Working moms in New York have the right to expanded accommodations for expressing breast milk at their places of employment under recent legislation.

The law, which takes effect June 7, requires all employers to provide a designated location for nursing employees to pump breast milk that includes such amenities as seating, a working space, and nearby access to running water. They also must develop and implement a written policy regarding employee rights when breastfeeding in the workplace. 

Smaller employers should start thinking creatively on how they can make accommodations or rethink space to comply, experts say.

“Part of this is kind of telling employers to reset their expectations,” when it comes to their work environments, says Devjani Mishra, a shareholder at Littler Mendelson P.C. in Manhattan.

Previously in New York, employers already had to make reasonable efforts to provide a space for employees to pump breast milk that wasn’t a restroom or toilet stall, she says.

Under the new law, that location must also now include a chair, working surface, nearby access to clean running water and — assuming the workplace has electricity — an electrical outlet, Mishra says.

It also must be well-lit, shielded from view and free from intrusion from other persons, she says.

Also, if the employer’s workplace has access to refrigeration, employees must be allowed access to refrigeration to store pumped milk, Mishra says.

All-sized employers must comply, although there could be the potential for certain exemptions if fulfilling all the law’s requirements poses undue hardship aside from cost, she says. Even then, they must still make “reasonable efforts” to provide a location that isn’t a restroom and is in close proximity to the employee’s work area, Mishra says.

“I think certain small businesses may be able to claim an undue hardship as to some of the law’s requirements, but the burden will be on the employer to show the undue hardship,” says Christine Malafi, senior partner and chair of the corporate department at Campolo, Middleton & McCormick, LLP in Ronkonkoma.

If there is a complaint, a resolution will be up to the Department of Labor on a case-by-case basis on the very specific facts involved in each situation, she says.

Some employers in certain circumstances may have to work out a reasonable accommodation such as providing a nursing pod, but if employees work outside, they may not have access to running water with a pod, Malafi says.

But bottom line is all employers have to “start thinking of a space with electricity and privacy where women can go to express breast milk,” says Malafi.

This is backed up by a recent amendment to the Fair Labor Standards Act, called the PUMP Act (Providing Urgent Maternal Protections), which on the federal level requires employers to provide a place to express breast milk that’s private from view and free from intrusion for all employees, Malafi says.

“It should never be a choice” having to choose between breastfeeding and staying employed, says Liz Uzzo, executive vice president and chief human resources officer at Melville-based H2M architects + engineers, which already provides dedicated lactation space for mothers.

In Melville, there’s a separate suite just for these purposes that includes a sink, refrigerator, and two private rooms with well-lit areas to work and comfortable seating. In satellite offices with less space, they have a shared room readily available if an employee needs to pump, Uzzo says.

The space has been invaluable for Adriana Concepción, 33, a senior project architect at H2M, who had a baby five months ago.

“I use the space everyday,” she says, noting she’ll even bring her laptop into the space so she can work while she pumps.

“The fact the company encourages people to use that room and has the space available helps alleviate a lot of stress,” Concepción says.

Beyond identifying and preparing a space, employers also must create a written policy regarding the rights of nursing mothers to express breast milk at work, Malafi says. The state DOL will be releasing a model policy for employers to follow, she says.

“This is a wake-up call for employers to support breastfeeding workers,” says Anastasia Schepers, Co-coordinator of The Breastfeeding Resiliency, Engagement and Empowerment (BFREE) Team based at Cohen Children’s Medical Center, which educates and supports parents, families and communities on breastfeeding.

Through a state grant that expires at the end of January, but BFREE has applied to get extended, they’ve helped organizations including school districts and libraries set up lactation spaces. The grant allows them to do so in four underserved communities: Islip, Wyandanch, Southampton and Glen Cove.

She said there’s options for all type of employers. For example, in Wyandanch School District, BFREE set up a portable privacy screen to create a private space and also utilized translucent window clings so people can’t look into rooms with clear glass, Schepers says.

By Jamie Herzlich

jherzlich@aol.com

Herzlich writes the Small Business column in Newsday.