As expected, New York’s Department of Labor (DOL) has issued FAQ guidance for employers on the state’s new Paid Prenatal Leave Law, which goes into effect on Jan. 1, 2025. While the guidance answers some questions, others remain unclear.
Background on Paid Prenatal Leave Law
All New York private-sector employers will be required to provide up to 20 hours of paid leave for employees requiring time off for prenatal health care services. The measure was signed into law in this year’s annual budget legislation, signed by Gov. Kathy Hochul in April.
The new paid prenatal leave requirement amends the state’s existing Paid Sick Leave Law. Under the Sick Leave Law, businesses with fewer than 100 employees must provide all employees with up to 40 hours of paid sick leave per year, while businesses with over 100 employees must provide 56 hours per year.
The new Paid Prenatal Leave requirement now adds a separate and distinct “bucket” of 20 hours of time for employees when the employee requires prenatal health care services.
Key Points from FAQ Guidance
The FAQ guidance provides clarity on the following issues:
- Leave is available for all employees upon hire. Unlike other leave entitlements, such as employee eligibility for Paid Family Leave (PFL) or Paid Sick Leave (PSL), Paid Prenatal Leave does not “accrue” and is available to all employees immediately upon hire.
- Leave entitlement is not dependent on full-time or part-time status. Presumably, even temporary or seasonal employees would be eligible for the leave under the DOL’s interpretation.
- The 20-hour allotment is based on a 52-week lookahead calendar. The law specifies that prenatal leave is available to employees in any “52-week period.” The DOL’s guidance interprets that period to a 52-week period which begins “the first time the employee uses Paid Prenatal Leave,” such that the first instance of usage becomes the “triggering date” for measuring the 52-week period.
- Employers cannot request “confidential information” about a medical appointment or “details” about a prenatal appointment. The FAQ states that employees cannot be “required to submit medical records or documents to their employer,” and that employers may not “ask [employees] for details about [their] prenatal appointments.” In total, the guidance does little to answer what information an employer can request.
- Leave is available for “prenatal health care services.” These services are defined to include “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.” The DOL’s interpretation, in other words, takes a broad view of appointments that could be categorized as “prenatal.”
- Spouses, family members, and other persons supporting a pregnant employee may not use paid prenatal leave. The guidance instead clarifies that only “the employee directly receiving prenatal health care services” qualifies for leave. (Note, however, that family members may be able to use other leave entitlements, such as Paid Sick Leave, if accompanying an expectant employee to a prenatal health visit.)
- Employees may use paid prenatal leave for certain medical appointments aimed at achieving pregnancy. Accordingly, employees could use paid prenatal time for fertility treatments, including in vitro fertilization (IVF) appointments.
- The leave can also be used for “end-of-pregnancy” appointments. The DOL does not add specifics on this point, though it presumably captures the DOL’s interpretation that Prenatal Leave may be used for health care appointments surrounding a terminated pregnancy or otherwise nonviable pregnancy. Post-natal and post-partum appointments, however, do not qualify for prenatal leave.
- Employees can use Paid Prenatal Leave for separate pregnancies that occur within the 52-week period. If the employee has a reason for prenatal health care services for multiple pregnancies within a 52-week period – and still has time left in their 20-hour allotment – the leave could be used for multiple pregnancies in the same 52-week period.
- Employers cannot require the employee to use another form of leave if the employee prefers to use Prenatal Leave. Employers should be wary of designating time off under another leave entitlement if the employee requests to use Prenatal Leave.
- Leave must be used in hourly increments, and unused time does not have to be paid out upon separation. As a best practice, employers should specify these rules in new Prenatal Leave policies.
Questions Remain, Especially on Requests for Leave and Acceptable Documentation
Employers will likely still have questions surrounding employee requests for leave and acceptable documentation to substantiate an employee’s request for using Prenatal Leave.
The guidance directs employees to “request [prenatal] time off like any other time off by using existing notification/request procedures within their workplaces.” Vexingly, the guidance also “encourages employees to give employers advanced notice of leave requests.”
Requests to use paid prenatal leave “like any other time off” may prove to be aspirational, considering the highly personal nature of prenatal visits. Many, if not most, employees will be reluctant to notify their employer of their need for prenatal care before they have announced their pregnancy beyond close friends and family. As a result, it might be reasonable to expect that employees will use other available time off (such as Sick Leave or PTO) for prenatal health visits before they have announced their pregnancy more broadly. Coupled with the DOL’s “encouragement” – but not requirement – that requests for prenatal leave be made in “advance” seems to suggest employers should be ready to respond to retroactive requests for prenatal leave.
Acceptable documentation to substantiate an employee’s need for prenatal care also remains unclear. The guidance says only that requests for “confidential information” and “details” are improper. Employers may be better served requesting or collecting documentation that only substantiates the employee’s need for prenatal health care services. Under the analogous Paid Sick Leave framework, for example, employers may request documentation from a licensed medical provider that simply “support[s] the existence of a need for sick leave” and the date the employee had that need.
Next Steps for Employers
Employers should work with their regular employment counsel to implement Paid Prenatal Leave policies for their employee handbooks. Employers are also best advised to review their existing leave policies to understand how those leave entitlements will work with the new prenatal leave requirement. Although the guidance states that employees may use Paid Prenatal Leave if available to them, the guidance also advises that employees may use other leave for prenatal health care appointments, such as Paid Sick Leave or employer-provided PTO.
