New York Issues Guidance on Paid Prenatal Personal Leave
As previously reported, effective January 1, 2025, New York employers will be required to provide employees with 20 hours of Paid Prenatal Personal Leave during any 52-week period. New York State has now released guidance for employers and employees, as well as FAQs, that employers should consult as they implement the new leave requirement. The key provisions of the law and the guidance are summarized below.
Separate Leave Entitlement: The guidance makes clear that while the Paid Prenatal Personal Leave requirement was enacted as an amendment to New York’s Sick and Safe Leave Law, the 20 hours of Paid Prenatal Personal Leave must be provided in addition to any other leave provided by an employer, including New York State Sick and Safe Leave (though prenatal healthcare appointments may also be covered under the Sick and Safe Leave Law). In addition, employers cannot require an employee who wishes to take Paid Prenatal Personal Leave to exhaust another form of leave first or require them to take a different type of leave.
Immediate Eligibility: The full 20 hours of Paid Prenatal Personal Leave are available to employees at the commencement of employment. Employees do not have to work for an employer for any period of time to be eligible for the leave and the leave hours do not accrue over time.
Covered Reasons for Leave: Paid Prenatal Personal Leave can be used for health care services received by an employee during their pregnancy or related to such pregnancy, and may include physical examinations, medical procedures, monitoring and testing, or discussions with a health care provider related to the employee’s pregnancy. Leave can also be used for fertility treatment and/or care appointments such as in vitro fertilization, as well as end-of-pregnancy care appointments, but it does not cover post-natal or post-partum healthcare appointments (though post-natal or post-partum healthcare appointments may still be covered under the NYS sick leave law). The guidance also makes clear that Paid Prenatal Personal Leave is only available for employees directly receiving prenatal health care services. Meaning, for example, if an employee’s spouse has a prenatal healthcare appointment, the employee is not eligible for Paid Prenatal Personal Leave to attend the healthcare appointment of their spouse.
Requesting Prenatal Personal Leave: The guidance states that employees needing Paid Prenatal Personal Leave should request the leave in the same way they would request or notify their employer of other types of time off at their workplace. In addition, employers are encouraged (though not required) to communicate to employees what notification procedures they should follow for requesting Paid Prenatal Personal Leave. Notably, the guidance affirmatively states that employers must allow employees to use any available Paid Prenatal Personal Leave when they request it; there does not appear to be a mechanism for employers to deny a leave request.
The 52-Week Period: Employees are entitled to 20 hours of Paid Prenatal Personal Leave per 52-week period. The guidance makes clear that the 52-week period begins the first time the employee uses Paid Prenatal Personal Leave and ends 52 weeks later. So, for example, if an employee uses Paid Prenatal Personal Leave for the first time on February 1, 2025, they would be entitled to 20 hours of leave through January 31, 2026. If, after January 31, 2026, the employee needs to use Paid Prenatal Personal Leave, a new 52-week rolling period begins the next time the employee uses the leave. In addition, an employee may use Paid Prenatal Personal Leave for more than one pregnancy per 52-week period, but only 20 hours are available in a 52-week period regardless of the number of pregnancies. The guidance makes clear that unused leave does not roll over to the following 52-week period.
Hourly Increments: Employees must be permitted to use Paid Prenatal Personal Leave in hourly increments, meaning that if an employee only needs one hour of leave, their employer cannot require them to use a full or half day of leave.
Recordkeeping: The guidance also explains that while there are no record keeping requirements associated with the new leave, it is 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 employee.
Confidential Information: Employers cannot (1) ask employees for personal or confidential information about their health or the nature of their prenatal visit as a condition of using the leave or (2) request that an employee submit medical records to use the leave.
No Payout Required: Unused Paid Prenatal Personal Leave does not need to be paid out to employees upon separation from employment.
Employers should revise their policies to include Paid Prenatal Personal Leave in advance of the January 1, 2025, effective date. Employers with questions about New York Paid Prenatal Personal Leave, including how to begin implementing and administering this new employee benefit, should contact Kate Townley at ktownley@fglawllc.com or any other attorney at the Firm.
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