Under new legislation signed by Governor Kathy Hochul, New York will become the first state to mandate paid time off for prenatal care. Starting January 1, 2025, all private-sector employees in New York will be entitled to an additional 20 hours of paid sick leave for prenatal healthcare services.

Expansion of the New York State Sick Leave Law

Under the existing Paid Sick Leave Law, employees in New York State working for a private employer with five or more employees are entitled to 40 or 56 hours of Paid Sick Leave each year. Employers may frontload this time at the beginning of the year, or they can choose to use an accrual method.

The new legislation expands the existing Sick Leave Law to require employers to provide an additional 20 hours per calendar year of paid sick time to New York employees for prenatal healthcare services. This is intended to be a separate, stand-alone benefit from other leave policies and laws, so employers must provide a bank for Paid Prenatal Leave that is separate from other available leave options, like paid sick leave. Although an employee may opt to use any existing leave policy to attend prenatal healthcare appointments, employers cannot require the use of one leave type over another. And unlike Paid Sick Leave, employers cannot opt for an accrual method and must make the leave available to all employees once law takes effect on January 1, 2025.

Employer Paid Prenatal Leave Policies

When crafting Paid Prenatal Leave policies, employers should keep the following in mind.

As noted above, all private-sector employees in New York, including new employees, are automatically entitled to 20 hours of Paid Prenatal Leave each year starting on January 1, 2025. There is no minimum amount of time an employee must work for an employer before being eligible.

Employers are required to pay employees who use Paid Prenatal Leave at their regular rate of pay, or the relevant minimum wage, whichever is greater. Employers also must permit employees to use this leave in hourly increments.

Further, Paid Prenatal Leave is to be measured in 52-week increments, beginning to run on the date the leave is first used and ending 52 weeks later.  Unused benefit hours do not carry over into the following 52-week period, and unused hours are not required to be paid out upon termination.  Employees may use Paid Prenatal Leave for prenatal health care appointments during or related to their pregnancy.  The statute describes the intended purposes of covered leave to include “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.”  New York State’s website provides further clarification that this paid leave covers “end of pregnancy care” (presumably including abortion procedures and related appointments) and fertility treatments, although these circumstances are not specifically identified as covered in the statutory text.

Only persons actually receiving the prenatal services may use this leave; it is not available, for example, to a spouse who attends a prenatal appointment with a pregnant person. Additionally, Paid Prenatal Leave is not available for health care appointments after pregnancy. Employers cannot request that employees submit medical records in order to use paid prenatal leave, nor can they ask employees personal or confidential information about their health or the nature of their prenatal health care appointment.

As with the existing paid sick leave requirements, employers are prohibited from retaliating against employees who exercise their rights to Paid Prenatal Leave.

Takeaways for Employers

Although there are no express requirements for employers to provide notice to New York employees of this new entitlement to Paid Prenatal Leave, it is imperative that New York employers become familiar with this new law so that they can properly administer it.  Among other things, properly categorizing and tracking the leave requested by employees for the covered purposes will require additional administrative procedures, which employers should prepare for now.  Employers should also consider how the New York Paid Prenatal Leave requirements intersect with employers’ obligations under the federal Pregnant Workers Fairness Act.