UPDATE: January 1, 2025 Due Date: New York Employers Should Prepare Now for the New Paid Prenatal Leave Law

Soon after we hit "publish" on our blog post about New York's paid prenatal leave law, the New York State Department of Labor (NYSDOL) posted the guidance we have all been waiting for. In a series of frequently asked questions (FAQs), the NYSDOL provides some clarity about the new leave requirement. Although there is nothing groundbreaking in the FAQs, they suggest that employers should generally handle requests for prenatal leave in the same way they respond to requests under the state's paid sick and safe leave law. Below is a general summary of the state's prenatal leave guidance.

Who Is Covered by the Paid Prenatal Leave Law?

The law covers all employees working in the private sector, regardless of the size of the employer, and employees are eligible to use all 20 hours immediately without consideration of their tenure. The leave benefits, however, are only available to pregnant employees. Spouses, partners and other support persons are not eligible for paid prenatal leave to attend appointments with a pregnant person.

How Is Leave Tracked and Paid?

Eligible employees must take prenatal leave in hourly increments. While the law does not require employers to specifically track employee use of prenatal leave, the NYSDOL notes that it is a best practice to maintain clear records of available leave amounts and the types of leave used, in a manner that is accessible to both the employer and the employee. If employers are already denoting accrued and used sick leave on employee pay stubs, they should consider adding a line item for prenatal leave as well.

Eligible employees are entitled to use up to 20 hours of paid prenatal leave during a 52-week period. The 52-week period is triggered the first time an employee uses prenatal leave. Once an employee exhausts their allotted 20 hours, they must wait until the start of the new 52-week period before they are entitled to more prenatal leave.

Employees must be paid at their regular rate of pay, or the applicable minimum wage rate, whichever is greater, when they use paid prenatal leave. Thus, hourly employees should be paid at their regular rate, while exempt employees should be paid for the full day if they work any part of the workday. As we noted previously, employers are not required to pay out unused prenatal leave upon an employee's termination, resignation, retirement or separation.

What Healthcare Services Are Covered and What Documentation Is Required?

Paid prenatal leave may be used for any healthcare services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a healthcare provider related to the pregnancy. This includes fertility treatments or care appointments like in vitro fertilization, as well as end-of-pregnancy care appointments. As the name of the leave suggests, it may not be used for postnatal or postpartum appointments.

Just as under the state's paid sick leave law, employers cannot ask employees to disclose confidential information about their health condition(s). Likewise, employers cannot ask employees for details about their prenatal appointments - it is enough that a pregnant employee requests to use available prenatal leave. Employers can, however, require that employees follow established policies and procedures for requesting time off.

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BakerHostetler's New York Labor and Employment Practice Group is available to answer questions concerning this new prenatal leave law as well as to review or prepare any related employment policies.