Paid Prenatal Care Leave

New York is the first state in the United States to require employers to pay for prenatal personal care for their employees.[1] On April 20, 2024, New York Governor Kathy Hochul signed into law a budget bill that amends New York State Labor Law § 196-b (New York State’s Paid Sick Leave law), requiring all New York employers to provide 20 hours of paid prenatal personal leave per 52-week period. The law, which takes effect on January 1, 2025, provides that employees may use this paid leave to get health care services 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.

Here are a few important facts about this new employee right:

• This leave is in addition to paid sick leave accruals of up to 40 to 56 hours (depending on employer size) that covered employers[2] must already provide to employees annually under New York State’s Paid Sick Leave law (“PSLL”)
• The leave may be taken in hourly increments, is paid in hourly installments, and need not be accrued before being used
• Employees receive their leave pay at their regular rate of pay or the applicable minimum wage, whichever is greater
• An employer need not pay out unused prenatal leave upon separation from employment
• Just as with other provisions of the PSLL, an employer may not require the disclosure of confidential information relating to an employee’s illness, injury, or health condition as a condition of providing paid prenatal personal leave
• Just as with other provisions of the PSLL, an employer is prohibited from discriminating or retaliating against an employee for exercising their rights under the law, including requesting or using paid prenatal leave (including a prohibition on discharging, threatening, or penalizing that worker for those reasons)
• Employees have the legal right to restoration to their position with the same pay and terms and conditions of employment after taking such paid leave
• The New York State Department of Labor Commissioner is authorized to adopt regulations and issue guidance

Paid Lactation Leave Law
In addition to New York’s paid prenatal care leave requirement, starting June 19, 2024, all New York employers will also be required to provide paid lactation break time for employees who are nursing for up to three years following childbirth.

Specifically, under an amendment to New York’s Labor Law §206-c(i) (Right of Nursing Mothers to Express Breast Milk), employers with workers in New York will have to:

• Provide thirty (30) minute paid breaks each time an employee needs to express breast milk in the workplace
• Permit an employee to use other existing paid breaks and mealtime to express breastmilk when they need more than 30 minutes to do so

Previously, the law allowed an employer to offer reasonable unpaid break time to an employee to express breast milk in the workplace.

The law also prohibits discrimination against employees for expressing breast milk at work. Notably, New York State’s Department of Labor has launched a statewide paternity leave awareness campaign.

Unrelated to this law, but related to New York’s FY2025 Budget, Governor Hochul announced that New York’s mandated COVID-19 Paid Sick Leave law—which requires employers in New York to provide employees with at least 5 or 14 days of job-protected COVID-19 paid sick leave (depending on employer size) will expire on July 31, 2025. As of that date, employers will no longer be required to provide a separate bank of COVID-19 paid sick leave. Note, however, that employees will still be able to use paid sick leave, of course, when ill due to COVID-19.

What Employers Should Do Now
In light of these important legal developments, employers should consider:

• Reviewing and updating their employee leave, break, and lactation accommodation policies to reflect the new legal requirements
• Ensuring compliance with notice posting and lactation policy distribution requirements
• Training employees on their rights and managers on employers’ legal obligations, including reviewing lactation accommodation policies, procedures, and timing for requesting lactation accommodations and engaging in a cooperative dialogue process
• Documenting the accommodation process at their organizations
• Conferring with their HR partners to ensure compliance
• Staying abreast of evolving legal developments affecting pregnant employees and those who are new parents, at the federal level, in New York and in other jurisdictions where they have employees physically working.

[1] Note, however, that the District of Columbia’s Paid Family Leave program taxes private-sector employers to provide 14 weeks of paid family leave to employees which encompasses prenatal care (or 12 weeks if no prenatal care is needed).

[2] Employers with 5 or more employees must provide job-protected paid sick leave. Those with fewer than 5 employees must provide job-protected unpaid sick leave of up to 40 hours per calendar year.