Exercising your Rights to Pump at Work

BY ALEX BERKE, ASSOCIATE AT BERKE-WEISS LAW PLLC

Breastfeeding New Yorkers received a new series of protections in March 2019, when the New York City Human Rights Law was updated to include specific requirements for employers with 4 or more employees to create lactation rooms and policies governing their use. New York City law built on existing protections under the New York State Human Rights law and clarified the requirements for lactation rooms.

If you are or are about to become a breastfeeding parent, this post is aimed at helping you understand how to use the law to advocate for what you need in the workplace. We speak with many clients who are the first or one of the first people in their workplace to be pregnant. When that is the case, the employer is often learning alongside the employee about how to best accommodate their needs. Whether or not you are the first employee in your workplace to be pregnant, you will often have to act as your own advocate for getting what you need to continue doing your job effectively.

Before going out on leave to give birth, parents would be wise to alert their employer that they are planning to breastfeed when they return. You can request the employers’ lactation accommodation policy, and if they do not have one, you can direct them to the New York City Human Rights Commission website, which includes sample policies. Although you are not expected to know your precise pumping schedule in advance, this gives everyone time to set things up for you when you get back to work. Employers with 4 or more employees are required to provide a lactation room that allows mothers to express milk “shielded from view and free from intrusion.” That room should include at least: an electrical outlet; a surface to place the breast pump and other personal items; nearby access to running water, and; a refrigerator suitable for breast milk storage.

It’s a fact of life in New York City that space can be hard to come by. Employers who can demonstrate that it’s an undue hardship may not be required to provide a dedicated lactation room for employees. The law outlines a number of factors to be reviewed in determining whether it is truly an undue hardship for the employer to provide the requested accommodation (in this case, a dedicated lactation room). These factors include, but are not limited to:

1. The nature and cost of the accommodation;
2. 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;
3. 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
4. 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. N.Y.C. Admin. Code § 8-102.

Note that discomfort from other people in the workspace is not considered an undue hardship, and cannot be used as a justification for not providing a place to pump.

If your employer cannot provide a dedicated lactation space, they still have to ensure that you can express breast milk at work. Some options contemplated by the law include, creating a temporary lactation space, pumping in a shared space (that still allows for privacy while pumping), pumping at your work station, or allowing longer breaks to pump offsite. Breastfeeding parents are not supposed to be told to express breast milk in a bathroom.

New York City Human Rights Law addressing reasonable accommodations for pregnant employees mandates a “cooperative dialogue,” between employees and employers. This means that while an employer may not be required to give you the precise accommodation you request, i.e. a dedicated lactation room, they are required to engage in a conversation with you and provide you a written determination explaining why the accommodation you request poses an undue hardship for the employer, and work to find an accommodation that meets your needs and does not pose such a hardship.

If your employer does not have a policy, will not provide a space, or is making it difficult for you to take the time you need to express milk at work, the New York City Human Rights Commission offers resources you can provide to your employer to illustrate your rights. A Better Balance, a nonprofit dedicated to improving the rights of employees with families has also created a New York specific resource called “Talking to Your Boss About Your Pump,” which can help guide your conversation. If your own advocacy is not getting the necessary result, it may be in your best interest to contact an attorney to determine whether you need assistance to get the accommodations you are entitled to receive. Contacting an attorney does not mean that you will start a lawsuit against your employer, or that you will necessarily stop working there. We often provide clients with advice and counsel in the background (without contacting the employer), or we contact the employer directly in an attempt to negotiate an accommodation, without you leaving your job. All cases are extremely fact specific, which is why contacting an attorney for a consultation may be useful to ensuring that you can exercise your rights under the law.

Alex Berke, an associate at Berke-Weiss Law PLLC, litigates and provides advice and counsel on sex harassment and discrimination cases, including pregnancy, disability, race, and gender discrimination. Alex also provides advice and counsel regarding employer policies, health insurance and COBRA eligibility for employees and employers. Alex spearheads Berke-Weiss Law's Pregnancy Project, providing pregnant women and families with the necessary tools to exercise their rights during and after pregnancy.