New York Releases Paid Prenatal Leave Guidance Ahead of January Effective Date

A year after announcing its first-in-the-nation effort to increase access to pregnancy-related healthcare, (discussed here), New York’s “paid prenatal leave” law is officially set to take effect on January 1, 2025.  Employers will be required to begin offering New York employees 20 hours of paid leave during a 52-week period to attend to prenatal medical needs, which is in addition to existing sick/safe leave already required in New York.  The New York State Department of Labor recently released an FAQ document to assist employers in implementing this new leave.  We detail some of the most pertinent guidance below.

20 hours of leave will be automatically available to all employees.

The guidance asserts that, unlike New York’s sick/safe leave law, paid prenatal leave is not accrued, and the full 20 hours of leave will be available immediately to all employees, regardless of their length of employment, beginning on January 1, 2025.  Though the guidance does not specifically discuss part-time or otherwise flexible work-time employees, it uses the phrase “all employees” indicating that the 20 hours are afforded to all employee regardless of their part/full-time status.

Leave can be used for a variety of purposes, including purposes beyond “active” pregnancies.

The law explicitly provides that leave may be taken for “health care 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 health care provider related to the pregnancy.”  The guidance goes further, however, and specifies a greater set of prenatal care leave circumstances eligible for leave, including for pre-pregnancy fertility treatment or care (such as in vitro fertilization), as well as end-of pregnancy care appointments (though the guidance specifies that the leave does not cover post-natal or postpartum care). 

Leave is limited to the individual receiving prenatal medical care.

Unlike the State’s sick/safe leave, which can be used for the care and treatment of family members, the guidance specifies that paid prenatal leave is only available to the individual receiving medical treatment, not partners, spouses, or other support persons.

Employers cannot request confidential medical information to verify leave qualification.

In its current form, the guidance states that employers cannot request, and employees need not submit, confidential information about their health condition(s) as a condition to use this leave – including requesting documents or records or other details about their conditions.  The guidance provides a vague answer, however, when it comes to what type of information employees do need to disclose to their employers in connection with requesting prenatal care leave.  The guidance states only that “[e]mployees should request time off like any other time off by using existing notification/request procedures within their workplaces,” and it “encourages employees to give employers advanced notice of leave requests and encourages employers to communicate how to request leave to their employees.”  This answer does not specifically address whether and how employers may verify that an employee utilized the leave for an authorized purpose.  Under New York’s sick/safe leave law, employers are permitted to ask employees for an attestation (from the employee or a medical provider) where the sick leave lasts for at least three days, but there’s no such similar guidance from the State here just yet and employers should tread carefully on this issue as a result. 

The 20 hours start anew with each 52-week period, not each pregnancy.

The 52-week period begins on the date the employee first takes leave.  While an employee might have multiple pregnancies that require them to seek prenatal healthcare within a 52-week period, additional pregnancies do not increase the 20-hour leave allotment across this period.  If an employee requires leave in excess of the 20-hours, they may use other leave options, including regular sick/safe leave (which permits leave for medical appointments generally).

Employers cannot dictate what leave an employee uses where more than one option is available.

There may be instances where an employee could have a choice of leave options for prenatal care needs, including paid prenatal leave.  However, the choice as to which leave to use is the employee’s alone.  Employers may not require an employee to first utilize a certain type of leave when more than one option is available, and employers may not reduce other leave options, like sick leave, when the employee uses paid prenatal leave.  The guidance specifies that any effort on the part of the employer to dictate the type of leave used could be viewed as retaliation.

Other pertinent provisions explained in the guidance:

1. Employers do not have to pay out unused leave upon termination or year-end as it does not accrue.
2. The employee must take the leave in increments of at least one hour.
3. The employee should be paid their regular rate of pay or the statutory minimum wage, whichever is higher, when taking leave.
4. There is no tracking/pay stub notice required; however, the guidance reminds employers that it is a best practice to maintain clear records of available types of leave and amounts for an employee to access. 

Employers should begin updating their leave policies to account for these impending changes.  The Mintz Employment team is ready to assist and discuss any other compliance concerns.

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