Lactation Law Update: New York and Illinois

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Elizabeth N. Hall, Blythe E. Lovinger, Grace L. Urban and Haley P. Tynes

March 2019

Recent developments require employers to reevaluate their lactation and nursing policies and practices to ensure that they

are in compliance with newly enacted local laws in New York City and Illinois.

Changes to New York City Lactation Laws: Effective March 17, 2019

Since 2007, New York City emp

loyers with four or more employees have been required to provide reasonable unpaid

break time (or to allow an employee to use paid break/meal time) to express breast milk in the workplace, for up to three

years following the birth of a child, and to make r

easonable efforts to provide a room, other than a restroom, to express

milk in private.

Additional lactation

-related obligations for New York City employers with four or more employees go into effect on March

17, 2019. For example, by that date, a covered

employer must provide lactating employees with a sanitary “lactation

room,” which is not a restroom, and which has, at minimum, an electrical outlet, a chair, a surface on which to place a

breast pump and other personal items, and nearby access to running

water.

The lactation room must be made available to

the employee for lactation purposes only when it is needed (and notice to other employees regarding the same is

required), and a refrigerator and the room itself must be in “reasonable proximity” to the e

mployee’s work area.

Notably, the required lactation room must be provided unless the employer can establish an “undue hardship,” in which

case the employer must engage in a cooperative dialogue with the employee to determine alternative accommodations

and

issue a final written determination to the employee that identifies any accommodation(s) that were granted or denied.

In addition, by March 17, 2019, a covered employer in New York City must implement a written lactation room

accommodation policy, which

states that employees have the right to request a lactation room and identifies the process

(as outlined in the Administrative Code) by which an employee may request a lactation room.

All new employees must

receive the lactation room policy upon hire.

Chan

ges to Illinois’s Lactation Law: Effective August 2018

Like many employers in New York, Illinois employers with five or more employees have been required, since 2001, to

provide employees with reasonable unpaid break time to express breast milk, in an appr

opriate room that is not a toilet

stall.

Effective August 2018, the Illinois Nursing Mothers in the Workplace Act was amended.

Now, Illinois employers with at least

five employees must provide “reasonable break time” each time an employee needs to express

breast milk, for up to one

year following the child’s birth.

While the break time “may” run concurrently with any other break time, the employee’s pay

cannot be reduced due to the time spent expressing milk or nursing a baby

– meaning, in effect, that any additional break

time needed to express milk or nurse must be paid. Further, covered employers in Illinois who do not provide the requisite

break time must show, if challenged, that providing the breaks is an “undue hardship”

– a heightened burden than that

previously imposed under the Act.

Lactation Law Update:

New York and Illinois