ATTENDANCE AND LEAVE MANUAL
POLICY BULLETIN 2008-01
TO: All State Agencies
FROM: Terry Jordan, Director of Staffing Services
SUBJECT: Expressing Breast Milk in the Work Place
The Labor Law has been amended to add a new Section 206-c regarding the right of nursing mothers to express breast milk in the work place. This memorandum is a result of discussions with the Governor's Office of Employee Relations and provides guidance on the application of this new provision to classified service employees in the Executive branch. Labor Law Section 206-c provides as follows:
"206-c. Right of nursing mothers to express breast milk. An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.
2. This act shall take effect immediately."
This legislation became effective August 15, 2007. It permits nursing mothers to express breast milk in the work place, but does not authorize breast feeding of the child at the work site. Furthermore, this benefit may only be used by eligible employees for up to three years following the birth of a child.
Time to Express Breast Milk
With respect to time during the workday to express breast milk, the legislation provides:
"An employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following child birth."
Based on the above language, an agency is required to allow a nursing mother who wishes to express breast milk to use:
- Reasonable unpaid break time;
- Meal time, and/or;
- Paid break time currently provided by the employer.
Using Existing Meal Periods and Paid Rest Breaks
Agencies are required to permit nursing mothers to express breast milk during their meal period and/or paid rest breaks if the employee elects to utilize meal periods and/or paid rest breaks for this purpose. However, an employee cannot be required to use meal periods and/or paid rest breaks for this purpose and may elect to express breast milk at other reasonable times during the work shift.
The legislation does not authorize the granting of additional paid break time beyond that already provided by the employer. Accordingly, if an agency does not provide paid rest breaks now, there is no obligation to create paid rest breaks solely to permit an employee to express breast milk.
Using Unpaid Break Time
Employees may elect to use the unpaid break time authorized by Section 206-c instead of or in combination with meal periods and/or paid rest breaks. Consistent with State policy on use of leave credits, employees must be permitted to charge appropriate leave credits (credits other than sick leave) during the unpaid breaks authorized by Section 206-c.
While the statutory benefit is available to employees within their basic workweek as well as during any additional time worked, including overtime shifts, employees are not permitted to charge leave credits outside their basic workweek. Use of unpaid break time outside the basic workweek does not impact eligibility to earn biweekly leave credits.
Eligibility to Earn Leave Credits under the Attendance Rules
It is critical that agencies advise employees who use unpaid break time authorized by Section 206-c and do not charge credits during such unpaid break time, that they may be ineligible to earn biweekly leave credits.
Because many employees returning from child care leave may have low leave balances, agencies need to ensure that employees understand the impact on eligibility to earn leave credits if they elect to utilize unpaid break time and not charge leave credits.
The Attendance Rules require an employee to be in full pay status for seven separate full days out of ten in a biweekly pay period in order to earn biweekly leave credits (or a proportionate number of days for employees scheduled to work fewer than ten days in a biweekly pay period). A day on which an employee takes an unpaid break for this purpose, and doesn't charge leave credits during that break, does not count as a day in full pay status for purposes of earning leave credits. For example, an employee scheduled to work ten days in a biweekly pay period who takes unpaid breaks (not charged to credits) for this purpose on more than three days in the biweekly pay period, has not been in full pay status for seven full days out of ten and consequently does not earn her biweekly vacation and sick leave credits for that biweekly pay period. In contrast, an employee who charges leave credits during the unpaid break time authorized by Section 206-c is in full pay status during such breaks.
Location to Express Breast Milk
With respect to a location to express breast milk, Section 206-c provides:
"The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy."
In accordance with this legislation, agencies must make "reasonable efforts" to identify a location that is both private and in close proximity to employee's work area. This may necessitate a balancing of the need for privacy and the proximity of the location to the work area. In some work environments it may be necessary for the designated location to be farther from the work area in order to ensure privacy.
Possible locations might include an office or conference room where steps can be taken to ensure that the employee can express milk in privacy. In many work locations, space is at a premium and is utilized for multiple purposes. In such cases scheduling a nursing mother's access to a particular location may be necessary in order to comply with both the legislation and agency work space needs.
Guidelines for Administering the Benefit
Agencies should apply the following guidelines when administering this benefit:
- Employees are required to make advance arrangements to utilize this benefit. Optimally, consultation with the agency would occur prior to a nursing mother's return to work from child care leave.
- Employees are not entitled to absent themselves from their work stations for this purpose without prior approval. Prior approval is normally obtained at the time the initial arrangements are made and a schedule is agreed upon. When an employee needs to change a previously agreed upon schedule, the employee must obtain approval to do so. In work settings where coverage is an issue, employers are obligated to arrange coverage and employees are expected to verify that the coverage is in place prior to leaving their work stations to express milk.
- Employees can be required to postpone a scheduled time to express milk for a brief period of time if they cannot be spared. For example, an employee attending a meeting that ends a half hour beyond the scheduled time or an employee in a patient care setting waiting 15 minutes for the staff member who will provide coverage for her to arrive would be expected to postpone the scheduled time to express milk.
- Time required to express breast milk includes the time required for the nursing mother to reach and return from the location identified by the agency for expressing milk.
- The amount of time needed to express breast milk may vary and there is no set limit on the number of breaks provided per day. They must, however, be reasonable and approved by the employer.
- The benefit is available to employees within their basic workweek as well as during any additional time worked, including overtime shifts.
- Management cannot use the difficulty in arranging time or location as a means of denying employees access to this statutory benefit.
Prohibition on Discrimination
The legislation specifically prohibits discrimination and provides as follows:
"No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place."
An employee who wishes to avail herself of this benefit is expected to give her agency reasonable notice so that a schedule can be arranged and a location identified. Normally, this consultation will take place prior to a nursing mother's return to work from child care leave. It is also expected that an employee will provide her agency notice when time for expressing breast milk is no longer required. In no event is the benefit available beyond three years from the date of birth of the child.
Agencies should already have sufficient documentation in connection with an employee's leave request for childbirth or child care to establish eligibility for this benefit. If there are circumstances which cause an agency to question the need for additional documentation, the agency should consult with the Attendance and Leave Unit of this Department.
Implementation and Designation of Section 206-c Coordinator
The Department of Civil Service is asking each agency or facility to designate a Section 206-c Coordinator. This Coordinator will consult with the Attendance and Leave Unit of this Department when arranging this benefit for nursing mothers.
Designate a Section 206-c Coordinator
Each agency or facility should designate an employee to serve as the Section 206-c Coordinator. Designation of such Coordinator will allow consistent and coordinated implementation of the policy and ensure the privacy of employees who wish to avail themselves of this benefit. The person designated to be the Coordinator should be a staff member from Human Resources or Administration who is familiar with privacy issues and can work effectively with nursing mothers and agency management to develop appropriate arrangements. All requests for this benefit will be handled by the agency or facility Section 206-c Coordinator.
Role of Agency Section 206-c Coordinator
When contacted by a nursing mother regarding this benefit, the Section 206-c Coordinator is expected to collect pertinent information concerning the employee's request, consult with the Attendance and Leave Unit of this Department regarding each individual case and work with the agency and the employee to identify the best options for scheduling time and designating a location for expressing breast milk.
The name of the Section 206-c Coordinator should be shared with employees so they know who to contact if they are interested in utilizing this benefit.
Please provide the name and contact information for the designated agency or facility Section 206-c Coordinator to the Attendance and Leave Unit on the attached form. This contact information will enable us to share any additional guidance regarding this policy with Section 206-c Coordinators as it becomes available.
Please complete and submit this form by February 25, 2008.
Questions concerning this benefit should be directed to the Attendance and Leave Unit of this Department at 518-457-2295.