lactation-faqs

Human Rights

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Frequently Asked Questions
Lactation Accommodations and Model Policy  N.Y.C. Administrative Code §8-107(22)

Note: This document explains the requirements of the New York City Human Rights Law, relating to accommodations for lactation. New York State and federal law also require employers to provide accommodations for lactation. Employers may continue to have obligations under those laws even if the employer may be able to show an undue hardship under the NYC law.

General Information

1. Who is protected under the Law?

Any employee who works in New York City for an employer with four or more employees.

2. Which employers are covered under the Law?

All employers that have four or more employees must provide lactation accommodations for their employees, as well as a written policy stating that employees have a right to request a lactation accommodation and explaining the process for making a request. Employers can use one of our model policies templates for their policy.

3. What are employers’ general obligations related to lactation accommodations for employees?

There are three general requirements for employers related to lactation accommodations for employees. Employers must: (1) provide adequate time for employees to express breast milk during the workday; (2) provide a lactation room with all of the components required by law; and (3) have a written policy on lactation accommodations. If providing a lactation room or other accommodations requested by the employee would pose an undue hardship, the employer must engage in a cooperative dialogue with the employee to determine what alternative accommodations may be available that meet the employee's needs. The “undue hardship” standard is described in further detail in Question 17 and is a high bar for employers to meet.

4. When should discussions about lactation accommodations take place between an employer and employee?

An employer should provide an employee with information about their right to lactation accommodations and information about the employer’s policy on lactation accommodations before an employee starts parental leave if possible. Employees may also request a lactation accommodation at any time. This may include communicating to the employer, orally or in writing, that they will need a lactation room or space, and/or scheduling adjustments to account for time to pump. All employees must be informed of their right to a lactation accommodation and the employer’s written policy on lactation accommodations upon being hired.

5. How soon must an employer respond to a request for a lactation accommodation?

Employers should respond to a request for a lactation accommodation as quickly as possible. Under no circumstances may an employer take more than five (5) business days to respond to a request for a lactation accommodation. During the time it takes to respond to a request and/or engage in a cooperative dialogue to determine the accommodation, employers must provide a temporary accommodation to the employee so that the employee can pump in a manner that meets the employee’s immediate needs, unless doing so poses an undue hardship. (See Question 17 discussing undue hardship.)

6. Does an employee need to be the birthing parent to receive a lactation accommodation?

No. An employee may pump at work regardless of whether they actually gave birth to their baby. For example, in the context of adopting a newborn, parents may decide to induce lactation to breastfeed their newborn. In addition, an employee may need lactation accommodations to pump in circumstances in which they are not the parent of the child, for example, in the context of surrogacy. Lactation accommodation rights are also available to employees of all gender identities and expressions (i.e., they are not limited to employees who identify as women and/or mothers).

Reasonable Time to Pump

7. When can employees express breast milk during the work day?

Employers must allow employees to take time to pump during an already-existing rest or meal break or as an extension of another already-existing rest or meal break. Employees who pump must be allowed the same quantity and quality of breaks as other employees who have breaks. Employees may need additional breaks to pump and must be provided sufficient breaks to meet their needs, unless such breaks pose an undue hardship, in which case the employer must engage in a cooperative dialogue with the employee to identify an alternative accommodation that will meet the employee’s needs. (See Question 17 discussing undue hardship.)

8. Do pumping breaks need to be paid?

Whether an employee is paid while pumping depends on the circumstances. If an employee is not completely relieved of all work duties during the time that they are pumping, they must be paid. If the employee is using their regular non-compensable break time to pump, the employer must allow them to pump and to reasonably extend the break as needed, and that time need not be paid if that is consistent with practice relating to other non-compensable break time. Employers may also provide employees with the option to use sick days or other paid time off in small, incremental amounts to pump. Employers cannot, however, require the employee to use paid time off for this purpose. There are state and federal laws that further discuss pay and break time, please go here for additional information.

9. Can an employer require an employee to perform work duties while they are pumping?

No. Absent an undue hardship, employers cannot force employees to perform work duties while they are pumping. (See question 17 discussing undue hardship.) If an employee voluntarily chooses to work while pumping and/or is not relieved of work duties, the employee must be paid at their regular rate.

10. Can an employer require an employee to alter their pumping schedule due to scheduling or space restraints?

No. An employee’s pumping needs must determine the employee’s pumping schedule, unless it poses an undue hardship, in which case the employer must engage in a cooperative dialogue with the employee. (See Question 17 discussing undue hardship.) Last minute changes to an employee’s pumping schedule can cause significant discomfort, pain, and anxiety. An employer should make every effort to accommodate an employee’s pumping schedule when doing so does not pose an undue hardship; this may require employers to adjust schedules of meetings to accommodate employees’ pumping schedules. An employee should not be forced to adjust their pumping schedule because of limitations on space or to align their pumping schedule with their pre-existing rest or meal break. However, where a lactation room is being used by multiple employees for pumping, employers may work with employees to adjust schedules to accommodate multiple pumping schedules.

Written Lactation Policies

11. What needs to be included in an employer’s written policy on lactation accommodations?

Model policies on lactation accommodations have been provided by the Commission. Under the NYC Human Rights Law, the written policy must state that employees have a right to request a lactation room and that the employer has a process by which employees may make those requests. The policy must: (1) state how an employee can submit a request for a lactation room; (2) guarantee that the employer will respond to requests as quickly as possible, and no later than within five (5) business days; (3) explain what to do when two or more employees need to use the lactation room at the same time; (4) state that the employer will provide reasonable break time for an employee to express breast milk; and (5) explain that if providing all aspects of the lactation room normally required by law would create an undue hardship for the employer, the employer will have a cooperative dialogue with the employee to figure out an appropriate accommodation to enable the employee to express breast milk at work. (See question 17 discussing undue hardship.)

12. What is a “cooperative dialogue”?

The term “cooperative dialogue” means the process by which an employer and the employee requesting a lactation accommodation engage in good faith dialogue about the person’s accommodation needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a lactation room, if necessary; and the difficulties that such potential accommodations may pose for the employer.
This conversation between the employer and its employees should be in good faith, may occur in writing or orally, and must conclude with a final written determination. This process gives the employee an opportunity to have an open discussion with the employer about their needs, and the employer has an opportunity to hear its employee and work with them to come up with an appropriate accommodation for the employee.

13. How may an employer use the model policy for lactation accommodations?

The model policy templates provided by the Commission may be used as a guide for employers in writing their own lactation accommodation policies. The model policy is intended to be customized based on the circumstances of the employer. Employers are not required to use the Commission’s model policy. However, employers’ policies must: (1) explain how an employee can submit a request for a lactation room; (2) state that the employer will respond to requests as quickly as possible, and no later than within five (5) business days; (3) explain what to do when two or more employees need to use the lactation room at the same time; (4) state that the employer will provide reasonable break time for an employee to express breast milk; and (5) explain that if providing all aspects of the lactation room normally required by law would create an undue hardship for the employer, the employer will have a cooperative dialogue with the employee to figure out the best possible accommodation to enable the employee to express breast milk at work. (See Question 17 discussing undue hardship.)

14. What are the consequences of not having a lactation accommodation policy?

It is a violation of the NYC Human Rights Law to not have a lactation accommodation policy and penalties and damages may be assessed against employers for failing to have a policy.

Lactation Rooms

15. What is a lactation room under the NYC Human Rights Law?

A lactation room is defined by law as a clean space, other than a restroom, that is shielded from view and free from intrusion from others, and has at least one electrical outlet. It must also have a surface, such as a table or counter, where employees can place a breast pump, and a chair. There must be nearby access to running water. The room may be a space available on a temporary basis for employees to pump; it does not need to permanently remain a lactation space when no employees need to use it for that purpose.

16. Where should the lactation room be located?

The room must be in close proximity to running water and a refrigerator to store breast milk. It should be easily accessible.

17. What if an employer cannot provide all of the requirements in the definition of a “lactation room”?

An employer must provide a lactation room unless it can show that doing so would pose an undue hardship to the employer. It is the employer’s responsibility to prove that providing a lactation room or certain requirements of a lactation room poses an undue hardship. Inconvenience is not an undue hardship.
In determining whether an accommodation poses an undue hardship, factors that may be considered include but are not limited to:
(a) The nature and cost of the accommodation;
(b) The overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(c) The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and
(d) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

See N.Y.C. Admin. Code § 8-102 (definition of “reasonable accommodation”).
If providing a lactation room, as defined by law (see Question 15), would create an undue hardship, the employer must engage in a cooperative dialogue with the employee to identify an alternative accommodation that will accommodate the employee’s need to express breast milk while working.
The employer should work with the employee to meet as many of the lactation accommodation requirements as possible, such as: identifying a shared space that may be used for lactation; putting up privacy screens in a shared space or around a workspace to create privacy; ensuring employees can pump at their workspace; or purchasing a mini refrigerator or cooling devices for employees to use.

18. What can an employer do to ensure the room is free from intrusion?

An employer should ensure that the door of the room has a lock and is shielded from view (i.e., has window shades or privacy screens). If the door cannot have a lock, a “Do Not Disturb” sign or other appropriate sign should be placed on the door or entrance of the space. The sign should be in the language(s) all employees can understand.

19. What if an employer cannot provide a refrigerator?

An employer must provide a refrigerator in close proximity to the employee’s work station. If the accommodation requested poses an undue hardship, the employer must engage in a cooperative dialogue with the employee to identify a reasonable accommodation that meets the employee’s needs. If an employer is unable to provide a refrigerator because it poses an undue hardship, the employer must discuss alternative options for where the employee may store their breast milk, which may include, for example, providing a cooler and ice packs to the employee. (See question 17 discussing undue hardship.)

20. What if the only available space for a lactation room has other uses, such as a conference room?

If there is no dedicated lactation room but it is not an undue hardship for an employer to make available a multi-purpose space (other than a restroom) for lactation and prioritize its use for that purpose, the employer must do so. If the designated lactation room is also used for another purpose, it must only be used as a lactation room while an employee is using the room to express milk. The employer must notify other employees that the room may only be used for lactation during that time. The employer should use signage and/or a scheduling system so that the lactation room remains free from intrusion while in use. The employer should ensure the door to the lactation room can be locked from the inside to create privacy and avoid intrusion by others. The employer should also ensure that any surveillance or security cameras, or cameras used in video conferencing, are turned off, covered, or disabled.

Other arrangements that may be made include but are not limited to converting an office; enclosing an area of unused space; in healthcare facilities allowing employees to use an exam/patient room; and converting storage space into a clean lactation room. If the lactation space is also a storage space, employers must ensure that the space is free of potentially harmful substances or contaminants such as chemicals or cleaning supplies.
Where the multi-purpose space is used to provide accommodations related to disability or religion, such as, for example, use as a prayer room, the employer should make every effort to accommodate the needs of all employees. One person's needs should not trump another's. An employer may not use the provision of an accommodation to one employee as an excuse to fail to provide an accommodation to another.

21. What if two or more employees need to use the designated lactation room at once?

When more than one employee needs to use the designated lactation room, the employer should discuss various options with all parties to determine appropriate accommodations that meet all employees' needs. The employer should use signage and/or a scheduling system so that the room can accommodate employees at different times of day. It may also be possible for an employer to create a multi-room space by placing partitions or screens in the space.

22. How many lactation rooms should an employer have?

While employers who have four or more employees must have at least one lactation room, unless that poses an undue hardship, the number of rooms actually needed to accommodate their employees may be greater than one. (See Question 17 discussing undue hardship.) Please see the Women's Health website for additional information.

23. Can an employer require an employee to use a lactation room to pump?

No. An employee who wishes to pump at their usual workspace shall be permitted to do this so long as it does not create an undue hardship for the employer. Discomfort expressed by a coworker, client, or customer expresses generally does not rise to the level of “undue hardship” for the employer. It is the employer’s responsibility to prove that allowing an employee to pump at their workspace causes an undue hardship. (See Question 17 discussing undue hardship.) If the accommodation requested poses an undue hardship, the employer must engage in a cooperative dialogue with the employee to identify a reasonable accommodation that meets the employee’s needs.

24. What can an employer do if an employee does not have a dedicated workspace, or the nature of their work is mobile (e.g., requiring travel from client to client)?

An employer should always ensure that the employee is aware of their rights to pump while working, including their right to request an accommodation, to pump for a reasonable amount of time, and to use established break times to pump.
Employers with employees who travel often must be able to provide basic lactation accommodations by thinking creatively and planning ahead. Some creative solutions may include:

portable lactation spaces;

using employer vehicles (e.g., the cab of a large agriculture or construction vehicle), along with shades or other privacy measures the employer can offer;

pop-up tents;

other mobile enclosed spaces that would allow mobile employees to pump in privacy;

temporarily assigning changing rooms or manager offices or conference rooms to serve as pumping spaces;

setting up a stall in an employee locker room;

for employees with mobile routes, ensuring employees are able to find a space to pump;

using portable screens to provide privacy in a shared area; and/or

subsidizing employees to purchase and use hands-free, battery-operated and or chargeable breast pumps while in the field.

The employer must engage in a cooperative dialogue with the employee to determine what accommodations are possible that meet the employee’s needs. If employees are regularly traveling to different clients, it is the employer’s obligation to communicate with its clients to ensure that employees have lactation accommodations at client locations.

25. What if an employer needs staff coverage when an employee is taking a pumping break?

If an employer needs coverage while an employee pumps, such as in a daycare setting when a care provider needs to step away, employers can consider various options to acquire coverage. Such options may include the following.

Workers cover for one another as needed.

The supervisor or manager provides coverage when an employee needs to be away from their work station.

The employer designates floaters who provide coverage when an employee is taking a break.

The employer adjusts the employee’s work schedule to accommodate flexible breaks to pump when needed.

Transportation employees are given a different route that can accommodate pumping breaks, or sales employees are given a different but equitable client list.

Small businesses where the employee who pumps is the only employee present may need to post a “Be Right Back” sign or phone message during pumping breaks.

26. What if the only option an employer can provide is a restroom?

The employer must make a showing of undue hardship that there is no other space where an employee can pump or alternative accommodation an employer can reasonably provide. (See Question 17 discussing undue hardship.) For example, the employer should first see if there are alternative lactation spaces in the community where the workplace is situated that their employees could reasonably use by looking at this list of NYC Community Lactation Spaces, Open to the Public.
If such a space is not available, and the employer makes a showing of undue hardship to have a space for pumping, and the employee prefers the use of a restroom rather than pumping at their workspace, a restroom may be used as an accommodation of last resort. The employer must make every possible effort to keep the restroom as clean as possible and to provide the other features that lactation rooms should have: specifically, the space should be near a refrigerator; be free from intrusion (i.e., permitting the employee to lock the restroom while pumping); and have an electrical outlet, running water, a table or counter, and a chair. For example, if an employee works at a small food establishment only equipped with a service counter and a restroom, the employee should be allowed to use the restroom if needed, and be allowed to lock the restroom for however long they need to pump, however many times a day they need to pump, during their shift. The employer can promote the most sanitary condition as possible by having the restroom cleaned more frequently, by installing a barrier or stall to separate the toilet from the rest of the bathroom area, and/or by permitting the employee to bring in a clean table from outside the restroom to place the pump and pump parts for each break.

27. What are the consequences of not providing a lactation room, lactation space, reasonable time to pump, or other accommodation?

It is a violation of the NYC Human Rights Law to fail to provide lactation accommodations unless the employer can show that it poses an undue hardship. (See question 17 discussing undue hardship.) Even if a requested accommodation may pose an undue hardship, an employer must engage with the employee in a cooperative dialogue to determine if there are other accommodations that may meet the employee’s needs. Failure to engage in a cooperative dialogue is also a violation of the NYC Human Rights Law. Employers may be required to pay civil penalties, damages to complainants, and change policies, train staff, post a notice of rights, and other forms of affirmative relief if found to be in violation of the NYC Human Rights Law.

Additional Accommodations

28. What are other accommodations employees who pump may need?

The needs of an employee will vary from person to person. An employee may need to adjust their pumping schedule over time. Employees may also need: a modified uniform; avoidance of/limits on exposure to toxic chemicals; or a change in schedule to allow for doctor’s appointments or increased pumping or nursing due to a breast infection, low milk supply, or other health condition. Some employees may need different duties temporarily. For example, a bulletproof vest worn by police/security officers may interfere with milk expression for some individuals, and it may not be possible to find private lactation space while on duty. In such cases, as a last resort where no other accommodation is available, temporary assignment to an alternative position may be offered.
In addition to a lactation room, if an employee needs to travel for an extended period of time, the employer may need to provide additional accommodations for that employee. Such accommodations may include paying for shipment of breast milk home unless it poses an undue hardship. (See question 17 discussing undue hardship.)
The employee may also need other accommodations related to post-pregnancy and caregiver discrimination. Please see our Legal Guidance on Pregnancy Discrimination and our caregiver factsheet.

29. What else should employers consider including in the lactation room or space beyond the requirements of the Law?

Though not legally required, employers may consider providing additional amenities to improve the space not only for the benefit of the employee, but for the benefit of the employer as well. Such amenities may include dish soap and paper towels for cleaning and drying pump parts and bottles, storage space for pump kits, hooks for hanging clothes, cleaning supplies for pumps and sink areas, and a microwave for sterilizing pump parts. The better and more comfortable the space, the more effectively the employee may pump, and thus the more promptly the employee can return to work.

Resources

Please see our Legal Guidance on Pregnancy Discrimination for additional information.
NYC Department of Health’s resources on breastfeeding/pumping.

NYC Department of Health’s community spaces for breastfeeding/pumping.
New York State and federal information on breastfeeding/pumping and the workplace.
Industry-specific accommodations can also be found at the U.S. Department of Health and Human Services Office on Women’s Health’s breastfeeding resource.
Additional resources may also be found at these organizations: A Better Balance, Pregnant @ Work.