Paid Prenatal Leave Updates
While New York State updated Labor Law 196-b as of January 1, 2025 to require each employer to provide up to twenty (20) hours of paid prenatal leave during any fifty-two (52) week calendar period, New York City (“NYC”) revised its own New York City Administrative Code (the “NYC Code”) and Rules of the City of New York (“NYC Rules”) to include its own prenatal leave requirements within New York City that build upon the state-wide requirements, effective July 2, 2025.
Both the State and NYC prenatal leave requirements are in addition to the time off required under the State’s Paid Sick Leave Law and NYC’s Earned Safe and Sick Time Act (the Local 3 CBA provides a bargained-for comparable benefit at Article II, Section 9 in lieu of the State Paid Sick Leave Law and NYC Earned Safe and Sick Time Act). NYECA determined it was best not to collectively bargain for a comparable benefit for the State prenatal leave benefit, as it is believed that the law, as written, would be less burdensome to NYECA members than any bargained-for alternative. As a result, as of January 1, 2025, all employers in New York State, including employers subject to the Local Union No. 3 CBA, must provide its employees with up to twenty (20) hours of paid prenatal leave during a fifty-two (52) week period, commencing on the date that the first hour(s) of leave is taken.
Paid “prenatal personal leave” is defined by the State 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, in vitro fertilization, and discussions with a health care provider related to the pregnancy. Importantly, the benefit does not extend to spouses/partners who wish to attend their pregnant spouse’s/partner’s appointment. Moreover, the right to such prenatal personal leave is fully accrued upon the first day of employment, regardless of whether the employment status is part-time, temporary, or subject to a probationary period.
NYC’s recent amendments to the NYC Code and NYC Rules seek to clarify certain rights and requirements regarding prenatal leave for employees within NYC, including the following:
NYC Adopts NYS’s Definition of Prenatal Personal Leave. NYC adopted the definition of “prenatal personal leave” used by the State in Labor Law 196-b (discussed above).
Employees May Use as Little as One (1) Hour Increments of Leave. As opposed to the Earned Safe and Sick Leave Act four, which requires increments of leave to be no less than (4) hours at a time, prenatal personal leave in NYC may be taken in an increment of as little as one (1) hour per day. (Once the initial minimum increment is reached, the employer may permit shorter increments thereafter (e.g., 4.25 hours of leave for Earned Safe and Sick Leave or 1.25 for prenatal personal leave).
Schedule Change In Lieu of Leave. Upon mutual consent of the employer and the employee, the employee’s scheduled work hours may be changed in lieu of using paid prenatal leave. However, an employer may not force such schedule change or require the employee to work additional hours as a condition of taking paid prenatal leave.
Proof May Only Be Required When Leave Results in More Than Three Consecutive Missed Days of Work. Like with Earned Safe and Sick Leave, if an employee uses paid prenatal leave resulting in an absence of more than three consecutive workdays, the employer may require reasonable written documentation that the use of such prenatal personal leave was for purposes authorized under the law, though the details of such specific purpose need not be disclosed in the written documentation. (This likely should not come into play, because the 20 hours of paid prenatal leave would max out in less than three complete workdays.)
Accounting Of Leave Used Each Pay Period. For each pay period that an employee uses paid prenatal leave, the employer must provide an accounting of: (a) the employee’s total paid prenatal leave used during the relevant pay period and (b) the balance of unused paid prenatal leave available for use. Such notice must be either on the pay statement or on a separate written documented provided with the employee’s pay statement. If pay statements are delivered electronically, such paid prenatal leave accounting may be delivered electronically, as well. If no paid prenatal leave is used in each pay period, such notice is not required with that pay statement.
Penalties For Failure to Comply. Should an employer violate the paid prenatal leave requirements, the employer may face penalties starting at $500 per violation and restitution, which may include back pay, reinstatement, or other appropriate relief upon a finding of retaliation, including liquidated damages.
Your company’s handbook, policies and practices should be reviewed to ensure they are following all paid prenatal leave requirements to avoid inadvertently violating these recent changes to the law.
Andrew J. Mundo, Esq., MURTAGH, COHEN, BYRNE & MURDY