What You Need to Know:
- As previously reported, the New York State Paid Prenatal Leave entitlement went into effect as part of Section 196-B of the New York Labor Law (i.e., the New York State Paid Sick Leave Law) on January 1, 2025.
- On June 3, 2025, New York City enacted amended Earned Safe and Sick Time Act (“ESSTA”) Rules (the “amended Rules”) that include a number of specific paid prenatal leave amendments. The amendments go into effect on July 2, 2025.
- Until now, New York employers’ paid prenatal leave obligations were determined by the State law. Going forward, employers with operations in New York City will need to assess both the existing New York State Paid Prenatal Leave entitlement and the New York City paid prenatal leave content in the amended Rules to determine their compliance requirements.
- The amended ESSTA Rules’ paid prenatal leave amendments touch upon a number of substantive topics, including but not limited to, the amount of paid prenatal leave, written policy requirements, balance notification, documentation, employee notice, increments of use, coordination with other leaves, recordkeeping, and potential penalties.
Earlier this year, the New York City ESSTA celebrated its 11-year anniversary (specifically in April 2025). When paid sick leave came to New York City in 2014, the mandate was just one of a handful of paid sick leave laws around the country. Today, there are 22 states with a paid sick leave or paid time off mandate, including New York State, as well as more than two dozen localities with such mandates.[1]
Unique substantive requirements, regular amendments, administrative guidance, and proactive enforcement have been hallmarks of the City’s ESSTA mandate since it went into effect in April 2014. While the ESSTA was originally passed in 2014 as the Earned Sick Time Act, the name was later changed in 2018 to reflect the addition of “safe time” provisions. Then in 2020, the ESSTA was amended in order to align with New York State’s paid sick leave requirements (“NY PSL”), which went into effect on September 30, 2020. The ESSTA was expanded in 2021 in response to COVID-19 to include paid time off for parents taking their children to get vaccinated. In October 2023, significant amendments were made that touched on a number of substantive requirements and standards, including employer size, employee eligibility, notice requirements, documentation standards, payment of sick/safe time, and written ESSTA policy requirements. Finally, in January 2024, the ESSTA was amended again to create a private right of action.
These most recent amendments – ESSTA’s amended Rules and their notable paid prenatal leave expansion – is the latest example of how paid time off in New York City is consistently in flux. As noted above, the amended Rules go into effect in less than a month, on July 2, 2025. Highlights of the amended Rules include the following:
- Paid Prenatal Leave Definition: Section 196-B of the New York Labor Law (“NYLL”) defines “Paid prenatal personal leave” as “leave taken for the 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 ESSTA amended Rules state that “paid prenatal leave” follows the State’s definition of “Paid prenatal personal leave.”
- Amount of Paid Prenatal Leave: Both the New York State paid prenatal leave entitlement and the New York City ESSTA amended Rules paid prenatal leave component allow up to 20 hours of paid prenatal leave during any 52-week calendar period.[2] Both the NYLL (and corresponding administrative guidance) and the ESSTA amended Rules state that the paid prenatal leave benefit is in addition to paid sick leave under the laws (either 40 or 56 hours depending on employer size).
- Written Policy Requirements: The robust ESSTA written policy requirement will now apply to paid prenatal leave for employers with operations in New York City. This means that employers must maintain a written paid prenatal leave policy and must distribute that written policy to employees personally upon commencement of employment, within 14 days of when any changes to that policy go into effect, and upon request by the employee.
Per the amended Rules, a New York City employer’s written paid prenatal leave policy “must meet or exceed all of the requirements of ESSTA and its Rules, and specifically address the following: (1) the availability of a bank of 20 hours of paid prenatal leave during any 52-week calendar period that is separate from paid sick and safe time under ESSTA; (2) the employer’s policies regarding the use of paid prenatal leave, including any limitations or conditions the employer places on the use of paid prenatal leave; (3) notice practices and procedures involving paid prenatal leave; (4) documentation practices and procedures involving paid prenatal leave, including the employer’s policy, if any, regarding any consequences of an employee’s failure or delay in providing such documentation; (5) minimum increments for use of paid prenatal leave; and (6) confidentiality considerations involving paid prenatal leave.
- Balance Notification: The amended Rules notably add a paid prenatal leave balance notification requirement for New York City employers. In particular, each pay period that an employee uses paid prenatal leave, the employer must inform the employee of the (a) amount of paid prenatal leave used during the relevant pay period and (b) total balance of paid prenatal leave available for use, either on the pay statement or other form of written documentation provided to the employee each pay period.
The New York State paid prenatal leave entitlement does not contain a paid prenatal leave balance notification requirement. In fact, the State’s paid prenatal leave FAQs note that “the law does not specifically require recordkeeping on paystubs,” however, the FAQs further provide that “it is a best practice to maintain clear records of available types of leave and amounts of types of leave used in a manner accessible to both the employer and the employee.”
- Increments of Use: The ESSTA amended Rules state that an employee may decide how much paid prenatal leave to use, provided however that an employer can adopt a written policy setting forth a minimum increment of “one hour per day for the use of paid prenatal leave as provided in labor law section 196-b(4-a)” and note that this standard applies “unless otherwise in conflict with state or federal law or regulations.” While the City's reference to a “one hour per day” increment might appear to conflict with the State law—which allows prenatal leave to be taken in “hourly increments”—the likely intent of the City is to align with the State’s standard.
- Documentation: Under the ESSTA amended Rules, employers can require employees to submit reasonable documentation that paid prenatal leave was used for an authorized purpose if the employee’s use of paid prenatal leave results in an absence of more than three consecutive workdays. The amended Rules also contain several additional provisions related to paid prenatal leave documentation, including what forms of documentation are considered reasonable. By comparison, the New York State paid prenatal leave mandate is silent on documentation and the State’s FAQs suggest that requiring documentation related to paid prenatal leave is not allowed.[3]
- Employee Notice: Under the ESSTA amended Rules, employers can require that employees provide reasonable notice of the need to use paid prenatal leave. For foreseeable absences, the standard is not more than seven days’ notice. For unforeseeable absences, the standard is for an employee to provide notice as soon as practicable. Moreover, where the absence is unforeseeable, the employer cannot require the employee to appear in person at a worksite or deliver any document to the employer prior to using the paid prenatal leave. The amended Rules list a number of permitted notice procedures including: (1) calling a designated phone number at which an employee can leave a message; (2) following a uniform call-in procedure; (3) sending an email to a designated email address; (4) submitting a leave request in a scheduling software system (provided the employee has access to such system on non-work time, and has been trained on and given written instructions on how to use the system); or (5) using another reasonable and accessible means of communication identified by the employer. These details must be outlined in the employer’s written paid prenatal leave policy. By comparison, the New York State paid prenatal leave mandate does not include specific employee notice standards.
- Coordination with Other Leaves: The ESSTA amended Rules state that “an employer must provide paid prenatal leave when an employee communicates to the employer that the employee needs time off for health care services to be received by such employee during their pregnancy or related to such pregnancy, unless an employee specifically requests to use other leave in lieu of paid prenatal leave.” (emphasis added). Further, the Rules note that “unless otherwise in conflict with state or federal law or regulations, an employer shall not require an employee to use other leave in lieu of paid prenatal leave, exhaust other leave before using paid prenatal leave, or use or exhaust paid prenatal leave before using other leave.” (emphasis added).
- Recordkeeping: In addition to the recordkeeping requirements under the paid sick leave requirements of the ESSTA, the ESSTA amended Rules require employers to maintain the following additional records for each employee: (1) the date and time of each instance of paid prenatal leave used by the employee; (2) the amount the employee was paid for each instance of paid prenatal leave use, (3) the amount of paid prenatal leave used during each pay period, and (4) the employee’s total balance of paid prenatal leave for each pay period. By comparison, the New York State paid prenatal leave mandate does not include specific language regarding record retention, however, aspects of the general State paid sick leave law may apply.
- Potential Penalties: The ESSTA amended Rules provide that an employee or former employee may be entitled to several types of relief for paid prenatal leave violations, including: (1) the full amount of any underpayment of wages owed under the ESSTA; (2) interest from the date of the underpayment to the date of the payment; and (3) liquidated damages up to 100% of the total amount of wages, unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.
- For prohibited retaliation, specifically, the law provides for all appropriate damages, including: (1) injunctive relief; (2) liquidated damages not more than $20,000; (3) rehiring or reinstatement of the employee to a former or equivalent position; and (4) an award of lost compensation or an award of front pay in lieu of reinstatement and an award of lost compensation.
- For a violation of one of the paid prenatal leave requirements, an employer may also be subject to penalties, including, but not limited to: (1) for prohibited retaliation, a civil penalty of not less than $1,000 nor more than $10,000, and (2) for underpayment of wages, a civil penalty of $500 for each failure to pay wages owed.
The New York State paid prenatal leave mandate does not contain specific language regarding potential penalties; however, general aspects of the New York State paid sick leave law may apply.
Next Steps: With the ESSTA amended Rules’ July 2, 2025 effective date approaching in less than a month, here are some next steps for employers to consider:
- Review overlap between the ESSTA amended Rules paid prenatal leave standards and the New York State paid prenatal leave entitlement (including administrative guidance) and determine a plan for dual compliance to the extent applicable to the employer.
- Review existing sick leave or PTO policies and practices, and assess the interplay with the ESSTA requirements, including the new paid prenatal leave standards, and any related attendance, conduct, anti-retaliation, and discipline policies and practices.
- Determine whether to implement new policies and practices to ensure compliance with the amended Rules paid prenatal leave entitlement.
- Train supervisory and managerial employees, as well as HR, on the City’s new paid prenatal leave requirements.
- Monitor the NYC ESSTA website for the potential release of updated FAQs and other administrative guidance related to employers’ paid prenatal personal leave compliance obligations.
[1] Today, the states that have enacted a statewide general paid sick leave or paid time off mandate include: (1) Alaska (effective 7/1/2025), (2) Arizona; (3) California; (4) Colorado; (5) Connecticut; (6) Illinois (PTO law); (7) Maine (PTO law); (8) Maryland; (9) Massachusetts; (10) Michigan; (11) Minnesota; (12) Missouri (effective 5/1/2025; very likely sunsets on 8/28/2025); (13) Nebraska (effective 10/1/2025); (14) Nevada (PTO law); (15) New Jersey; (16) New Mexico; (17) New York; (18) Oregon; (19) Rhode Island; (20) Vermont; and (21) Washington. In addition, (22) Virginia has a statewide paid sick leave law that applies only to certain home health workers. There also is a paid sick leave mandate in (23) Washington, D.C.. Further, as noted above, there are more than two dozen municipalities with paid sick leave or paid time off mandates in the United States.
[2] For employers with operations in New York City, it appears that the amended Rules do not require a 20-hour bucket of paid prenatal leave that is in addition to the 20 hours of paid prenatal personal leave called for under the NYLL. We expect this topic will be further clarified in forthcoming administrative guidance.
[3] One particular New York State FAQ reads as follows: Q: Are employees required to submit medical records or documents to their employer? A: No, and employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use Paid Prenatal Leave.
