New York Paid Prenatal leave begins next year – What employers need to know
Beginning January 1, 2025, New York employers must provide eligible employees 20 hours of paid prenatal (Paid Prenatal) leave during any 52-week period to cover health care services related to or during their pregnancy. The law was first passed by Governor Kathy Hochul in May 2024, and amends New York Labor Law SS 196 b, the state’s Paid Safe and Sick Leave law. The New York Department of Labor (NYDOL) released a series of FAQs on December 2, 2024. These FAQs clarified a number of questions about the law’s implementation. The law is the only one of its kind in America, and it provides paid, protected leaves for pregnant employees, separate from other leave options. Key highlights of the Paid Prenatal Leave law are summarized below.
Eligibility for Paid Prenatal Leave
Paid Prenatal Leave applies to all New York private-sector employers with no minimum employee threshold. The FAQs broadly define “private-sector employers” to include “persons, corporations, limited liability companies, or associations employing any individual in any occupation, industry, trade, business, or service, regardless of part-time and overtime exempt status.”
While Paid Prenatal Leave is available to both full-time and part-time employees, only employees who directly receive prenatal health care services are covered by the law, and not spouses, partners or other support persons. The law allows covered employees to take Paid Prenatal Leave multiple times within a 52 week period. However, the total amount of leave is limited to 20 hours. Stated differently, unused prenatal leave does not appear to carry over from year to year.
Permitted Uses for Paid Prenatal Leave
The law defines “paid prenatal personal leave” to include “physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.” The FAQs further clarify that the law covers fertility treatments, such as in vitro fertilization, and end-of-pregnancy care appointments, but does not apply to post-natal or postpartum appointments.
Accrual Not Required for Paid Prenatal Leave
The FAQs clarify that the law does not require employees to accrue Paid Prenatal Leave or work for an employer for a minimum amount of time before accessing Paid Prenatal Leave. The NYDOL encourages employees and employers to give advance notice of any leave requests. In this regard, the NYDOL advises covered employees that they should request Paid Prenatal Leave by using existing notification and request procedures within their workplace.
Compensation for Paid Prenatal Leave
Employees must take Paid Prenatal Leave in hourly increments, and must receive compensation at their regular rate of pay, or the applicable minimum wage established pursuant to New York law, whichever is greater. Employers are not required to pay an employee for unused Prenatal Leave at the time of termination or separation from employment.
Record-Keeping Obligations
While the law does not specifically require record-keeping on pay stubs or in leave accrual banks, the NYDOL advises that it is “best practice for employers to maintain clear records of available types of leave and amounts of leave used in a manner accessible to both the employer and employee.” It will be especially important for employers to record the date Paid Prenatal Leave is first taken, as this is the “triggering date” for the rolling 52-week period contemplated by the law.
Interaction With New York Paid Sick Leave
The FAQs make clear that Paid Prenatal Leave is a separate employee benefit from leave available under New York’s Paid Sick Leave Law (which provides for at least 40 or 56 hours of leave per year, depending on the size of the employer). Employers cannot require employees to choose between different types of leave or to exhaust other types of leave before taking Paid Prenatal leave. For example, an employer may not, among other things: (i) require the disclosure of confidential information about an employee’s health condition(s), such as medical records, as a condition of providing Paid Prenatal Leave; or (ii) penalize, discriminate or retaliate against an employee for requesting or taking such leave.
Key Takeaways for Employers
These new additions to New York’s Paid Sick and Safe Leave law represent a significant advancement in the benefits afforded to pregnant workers and set a precedent for other states to follow. New York may be the first state to require such leave, but the law is in line with recent federal laws that provide employment protections for pregnant and nursing employees, including the Pregnancy Workers Fairness Act. New York employers must take steps to ensure compliance, including revising employee handbooks and sick-leave policies and training supervisors. As always, Sheppard Mullin is available to provide guidance and support to employers as they adapt to these new requirements.
