Drafting a Lactation Break Policy to Accommodate Nursing Mothers
Federal and New York law both require covered employers to provide reasonable unpaid break time to nursing mothers to express breast milk. Federal law mandates that the breaks be provided for one year following child birth, and New York law mandates that the breaks be provided for three years following child birth.
These requirements beg the question: How much lactation break time is sufficient to be considered reasonable and actually accommodate a nursing mother?
Under New York law, breaks must be a minimum of 20 minutes in duration, or a minimum of 30 minutes when the lactation room is not in close proximity to the employee’s work area. However, the number and frequency of breaks needed to express milk as well as the duration of each break will vary depending on the amount of time the employee is separated from the nursing infant and the mother’s physical needs.
In most circumstances, it would be reasonable for an employer to provide unpaid break time at least once every three hours if requested by the employee. With a very young infant, though, the mother may need to express milk more frequently.
Further, since the break time includes not only the time actually spent expressing milk, but also set up, clean up and storage of milk, employers should be amenable to providing breaks longer than 20 minutes (or 30 minutes, as the case may be) if the mother’s needs necessitate it. For example, mothers who must spend 20 minutes expressing milk may not have sufficient time to do so with a 30-minute break once one factors in the time needed to set up, clean up and store breast milk. The total length of the break will depend on additional factors, such as:
- How long it takes for the employee to express breast milk;
- How long it takes the employee to walk to and from the lactation space and whether she needs to wait to use the space;
- Whether the employee needs to get her pump and other supplies from another location (such as a locker room);
- Whether the employee needs time to set up her pump and how long the set up takes;
- The efficiency of the pump used;
- How long it takes the employee to clean the pump and other supplies and the location of the sink she can use for this purpose; and
- How long it takes the employee to walk to and from the location where she can store her expressed milk.