Over the weekend, the New York State Legislature passed the state budget for fiscal year 2025. The budget contains expanded access to paid leave for pregnant employees, including up to 20 hours of leave per year for pregnant employees to use for prenatal medical care. This 20-hour allotment is in addition to the state-mandated sick leave as well as the 12 weeks of paid family leave that New York already guarantees and, thus, is an additional form of protected leave that will soon need to be afforded to eligible employees.
What do New York-based employers need to know and do?
As a component of the budget process, the Legislature passed an amendment to New York Labor Law Section 196-b, which governs sick leave. The amendment will take effect on Jan. 1, 2025, and will afford employees an additional 20 hours of paid leave for prenatal care, separate from the preexisting sick and paid parental leave that New York already mandates. Employees should be able to use this dedicated bank of time 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 amendment does not explicitly state whether expecting employees who are not pregnant but have a partner who is pregnant are also eligible to use this leave. So we will have to await the state’s guidance on partner eligibility for this paid prenatal leave, particularly where an expecting parent joins their pregnant partner for health care appointments “related to the pregnancy.”
An employee may take prenatal care leave in hourly increments and must be paid in hourly installments. The law is silent as to how exempt employees (who are not paid on an hourly basis) should be compensated for use of prenatal care leave. As such, this is an additional issue that requires input and interpretative guidance from the state. Employees should be paid for use of this leave at their regular rate of pay or the applicable minimum wage (whichever is greater). Employers are not required to pay out an employee for unused paid prenatal leave upon an employee’s termination, resignation, retirement or separation. The amendment also provides a prohibition on employer discrimination or retaliation against an employee for using or requesting prenatal leave.
In advance of the amendment taking effect, employers should review and update their handbooks and policies to ensure compliance with the impending requirements. Employers should ensure that their managers and payroll team are aware of this new law so that employee requests to use protected leave associated with prenatal care will be lawfully granted and properly paid.
Are there other pregnancy-related protections that employers should be aware of?
While paid prenatal leave is the latest protection that must be afforded to pregnant employees in New York, federal laws aiming to protect pregnant and nursing employees also have been enacted recently. For example, just last week the Equal Employment Opportunity Commission published the final rule implementing the Pregnant Workers Fairness Act (PWFA). The PWFA requires covered employers to provide reasonable accommodations to qualified employees and applicants with known limitations related to, affected by or arising out of pregnancy, childbirth or related medical conditions, absent undue hardship. BakerHostetler published a summary and analysis of the PWFA, available here. The PWFA followed the passage of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which requires employers to provide employees, including exempt employees, with reasonable break time to express breast milk. BakerHostetler also published a comprehensive analysis of the PUMP Act, available here.
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