The Ins and Outs of the New Paid Prenatal Leave Law

On January 1, New York made history as the first state in the nation to provide paid prenatal leave — allotting 20 hours of sick time to attend pregnancy-related appointments.

But now what?

Whether you’re a pregnant employee, the employer of a pregnant person, or even a member of their support system, here is what you need to know.

What is the Paid Prenatal Leave Law?

This is an amendment to Labor Law Section 196-b that provides employees with 20 hours of paid leave time per year to be used for prenatal health care service appointments during their pregnancy or related to their pregnancy.

How does paid prenatal leave relate to NYS Sick Leave in Labor Law 196-b?

Paid Prenatal Leave is a separate employee benefit from NYS Sick Leave (paid or unpaid). Prenatal health care appointments may be covered by NYS Sick Leave, Paid Prenatal Leave, or an existing employer’s leave policy. An employer cannot require an employee to choose one leave type over another, or require an employee to exhaust one type of leave before using paid prenatal leave. It is a stand-alone benefit available to employees seeking prenatal health care services.

Who is covered by the Paid Prenatal Leave Law?

All employees working for private-sector employers, which include persons, corporations, limited liability companies, or associations employing any individual in any occupation, industry, trade, business, or service — regardless of part-time status, and overtime exempt status.

Is this leave time in addition to existing leave policies and the NYS Sick Leave Law?

Yes, this is a new legal requirement that provides a separate benefit from other leave policies and laws. Employees are entitled to 20 hours of paid prenatal leave, in addition to any other available leave options.

Does employer size matter?

No, all private-sector employees are covered regardless of size.

Can spouses, partners, or other support persons use Paid Prenatal Leave to attend prenatal appointments with a pregnant person?

No, paid prenatal leave may only be used by the employee directly receiving prenatal health care services.

Questions for Employees

Does an employee accrue Paid Prenatal Leave?

No, all employees automatically have 20 hours of paid prenatal leave.

Do brand-new employees have paid prenatal leave?

Yes, the law does not require employees to accrue paid prenatal leave or work for an employer for a minimum amount of time before accessing paid prenatal leave.

Can employees use Paid Prenatal Leave in hourly increments?

Yes, employees must use this benefit in hourly increments.

What rate of pay applies to this leave?

An employee must be paid at the employee’s regular rate of pay, or the applicable minimum wage established by the Labor Law, whichever is greater, for the use of paid prenatal leave.

What health care services are covered?

Paid prenatal leave covers 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.

Does this law apply to fertility treatment or care appointments, including in vitro fertilization?

Yes.

Does this law apply to end-of-pregnancy care appointments?

Yes.

Does this law apply to post-natal or postpartum appointments?

No.

Are employees required to submit medical records or documents to their employer? Can an employer ask for details about prenatal appointments?

No — and employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use paid prenatal leave.

What information do employees need to disclose to their employer to use paid prenatal leave?

Employees should request time off like any other time off by using existing notification/request procedures within their workplaces.

If an employee requests paid prenatal leave, can the employer require the employee to use a certain leave type if there is more than one option available?

No. The employee can use paid prenatal leave for health care services related to their pregnancy, or they may use other available leave they have available.

When does a 52-week period begin each year?

The first time the employee uses paid prenatal leave begins the 52-week period for that employee. For example, the triggering date is the date that the leave is first recorded on an employee’s timesheet.

What if an employee becomes pregnant more than once in a 52-week period?

An employee may use paid prenatal leave on more than one pregnancy per year, but only 20 hours are available in a 52-week period. Any paid prenatal leave hours remaining from the first pregnancy may be used during the second pregnancy, if the second pregnancy is within the same 52-week period.

How many times can eligible employees use this benefit in one year?

This leave may be used throughout a 52-week period until the 20 hours are exhausted.

What if an employee needs more than 20 hours of leave or requests a different type of accommodation?

Employees may have additional options provided by other laws. Utilizing paid prenatal leave does not preclude employees from asserting rights under other laws. As an example, employees should review the federal Pregnant Workers Fairness Act.

Questions for Employers

Can employers provide more than 20 hours of paid prenatal leave?

Yes, nothing in the law restricts an employer from providing more than 20 hours.

Do I have to pay this benefit out if my employee does not use it?

No, if an employee separates from the employer, then the employer has no obligation to pay the employee for unused paid prenatal leave hours.

Does an employer have to identify/classify paid prenatal leave differently on pay stubs or in leave accrual banks?

While the law does not specifically require record-keeping on pay stubs, it is a 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.

Employers cannot retaliate against employees for requesting paid prenatal leave. What are some examples of retaliation?

A few examples include employers reducing other leave options like NYS Sick Leave when the employee uses paid prenatal leave, or employers changing work locations or hours after a paid prenatal leave request is made.

Submit a Complaint

Where should employees submit a complaint if this law is not being followed, or report allegations of retaliation?

Anyone who wishes to file a complaint or report a violation of the New York State’s Paid Prenatal Leave Law may submit a complaint online with the New York State Department of Labor’s Division of Labor Standards here: apps.labor.ny.gov/DOL_Complaint_Form/PreNatalLeave.faces.post