New York State Extends Mandated Paid Leave to Cover Prenatal Leave; Will Other States Soon Follow?

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While there is no federal law providing private employees the right to paid family and medical leave, states continue to adopt a variety of paid medical and family leave and/or sick leave laws requiring that employers provide their eligible employees with paid leave for family or medical-related reasons. As of early 2024, around 13 states had some form of paid family and medical leave (with even more providing some form of paid sick leave), which are mandated in various different formats, including for example, a salary continuation program that is 100% employer funded 100% or a state-run program that is funded through employee and employer contributions. While each state law is different, these laws generally all tend to cover absences related to an employee’s own serious medical leave or that of a relative and/or an employee’s need to bond with a new child (essentially, maternity and paternity leave). Generally, however, these laws do not cover prenatal leave, which relates to leave needed prior to the birth of a child. To the extent any state law considers an employee’s need for prenatal care, such leaves are usually accounted for under sick leave laws or disability programs and are often unpaid (for example, under leave pursuant to the federal Family and Medical Leave Act).

In April, however, New York became the first state to mandate private employers provide paid prenatal leave to employees in the state. This new law will take effect on January 1, 2025. Through this amendment to New York Labor Law Section 196-b, employees will now receive 20 hours of paid leave in a 52-week period to be used for “prenatal care,” which is defined as “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.” As this definition only refers to an employee’s own pregnancy, it is not clear if such leave is available to employees who are not pregnant but need to care for, or attend appointments with, a pregnant partner.

Notably, these 20 hours of paid prenatal leave are in addition to, and separate from, any preexisting sick and/or paid parental leave that an employee is entitled to under preexisting state-law mandates. Essentially, eligible employees will have a separate bank of paid leave to utilize specifically for prenatal care, in addition to any other leave provided or required under state law.  For example, an employee in New York may be entitled to 40 to 56 hours of paid sick and safe leave, 12 weeks of paid family and medical leave (which is paid at 67% of an employee’s average weekly wage), and 20 hours of paid prenatal leave.

This paid prenatal leave must be paid at the higher of the employee’s regular rate of pay or the applicable minimum wage; however, employers are not required to pay out any unused paid prenatal leave upon an employee’s termination from the employer.

Based on the language in the amendment, eligible employees are entitled to the full amount of paid prenatal leave upon their hire; they do not have to accrue this leave as they work (or wait until they have worked a certain period of time before using this leave).  Paid prenatal leave can be used in hourly increments, and there is not any limit on the amount of times an eligible employee can use paid prenatal leave during the course of their employment with an employer.

New York has been a leader in the area of state-mandated paid sick and family leave in recent years, and this development could be a bell weather for other states. Employers subject to New York’s paid parental leave law (i.e., generally all private employers (including those outside of New York) with one or more employees in New York) should begin taking steps to learn about this new leave requirement and adopt or update their policies and procedures and internal administrative processes to reflect the new rules. Employers will also need to train their supervisors and human resource employees on the new requirements so they are prepared to administer paid prenatal leave as of January 1, 2025. While this law will not affect employers who are not subject to New York’s paid leave requirements, it provides a good reminder to such employers to check their own state’s laws to ensure they are complying with any existing rules. Moreover, this development provides all employers, particularly those in states known to be “employee-friendly” or that have paid family leave mandates in place, a good preview of what their own state legislatures could be contemplating for the future.