The New York Department of Labor (NYDOL) recently added a frequently asked questions (FAQs) section to its prenatal leave webpage, providing additional insight into the department’s interpretation of a new state law that takes effect January 1, 2025. While the FAQs do not have the force of law, they still offer valuable information. Background As outlined in our prior alert, with the passing of the New York State budget on April 20, 2024, New York became the first state to enact legislation requiring employers to provide employees with paid prenatal leave. In an amendment to New York Labor Law §196-b, all private employers must provide employees with 20 hours of paid prenatal leave in any 52-week period during or related to pregnancy for health care services, including appointments, procedures, tests and discussions with healthcare providers related to pregnancy. The law states that this requirement is separate from (and in addition to) New York State paid sick leave. The law also provides that paid prenatal leave must be used in hourly increments and shall be paid at the employee’s regular rate of pay or the minimum wage, whichever is greater. Eligibility for Use Is Limited to Direct Prenatal Care The FAQs clarify that all private sector employers, regardless of size, must provide paid prenatal leave, which is available to employees in need of prenatal care regardless of part-time status or overtime exemption status. In addition, beginning at the time of hire, eligible employees may use 20 hours of paid prenatal leave in a 52-week period. The 52-week period starts at the time an employee first uses paid prenatal leave. However, not all employees will be eligible to use paid prenatal leave. Employees are only eligible to use paid prenatal leave if they are directly receiving prenatal healthcare services. The FAQs explain that this benefit cannot be used by spouses or partners of pregnant employees to attend prenatal appointments. Reason for Use Extend Beyond Pregnancy Paid prenatal leave may be used during or related to pregnancy for health care services, including appointments, procedures, tests and discussions with a healthcare provider related to pregnancy. The FAQs explain the scope of use includes fertility treatment or care appointments, in vitro fertilization, end-of-pregnancy care appointments, but not post-natal or postpartum appointments. Requirements for Requesting Leave The FAQs provide that employers are limited in controlling an employee’s use of paid prenatal leave or requiring medical documentation. Employers cannot require employees to exhaust sick leave, vacation, or any other leave before using paid prenatal leave. It is the employee who decides which available leave entitlement to use. In other words, an employee may choose only to use paid prenatal leave and not sick leave. In fact, according to the NYDOL, reducing an employee’s paid sick leave in response to an employee’s use of paid prenatal leave will be considered unlawful retaliation. The NYDOL explains in the FAQs that employers should communicate to employees how to request paid prenatal leave. The FAQs clarify that the law does not prohibit employers from requiring employees to request leave in advance (except if advanced notice is prohibited by another law, i.e., unforeseeable sick leave, in which case prenatal leave can still be used without notice). However, employers cannot require employees to submit medical records or documents as a condition of requesting to use paid prenatal law. Employers also cannot require disclosure of confidential information around a mental or physical illness, injury or health conditions as a condition of providing such leave. NYDOL encourages employers to require employees to request time off for paid prenatal leave like any other time off (i.e. by using existing notification/request procedures). Recordkeeping While not technically required, employers should track the use of paid prenatal leave. Failure to track leave can support a claim that required paid prenatal leave was required to be offered but not provided. While the law does not require that paid prenatal leave be recorded on a paystub, the first use must be recorded to trigger the start of the 52-week period. As such, employers should keep clear records of use of paid prenatal leave separate from sick leave. No Obligation to Pay Unused Paid Prenatal Leave Upon Separation Unused paid prenatal leave is not required to be paid out upon separation from employment. This is distinct from New York’s general rule that requires employers to advise employees in writing of any policy that accrued unused paid leave will be forfeited upon separation. In the absence of such a policy, New York employees are to be paid out accrued unused leave upon separation. Paid prenatal leave does not have this requirement, which is another reason that paid prenatal leave must be treated separately from sick, vacation leave or other paid time off. No Retaliation Finally, the NYDOL reminds employers that retaliation for use of paid prenatal leave is prohibited. NYDOL also notes that retaliation includes reducing an employee’s amount of sick leave or changing their work locations or hours after the employee requests or uses paid prenatal leave. New York employers should review their policies and procedures, train their managers, update payroll systems and consult with legal counsel to ensure that they are prepared to comply on January 1, 2025. For more information, please contact Carolyn Richmond at crichmond@foxrothschild.com, Glenn Grindlinger at ggrindlinger@foxrothschild.com, Bryn Goodman at bgoodman@foxrothschild.com or any member of Fox Rothschild’s Labor & Employment Department.
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