The New York State Department of Labor (NY DOL) has released highly anticipated guidance in the form of Frequently Asked Questions regarding the new January 1, 2025 requirement for employers to provide paid leave for pregnant employees to attend prenatal medical appointments and procedures. As previously reported, this amendment to New York Labor Law § 196-b (the statewide paid sick and safe leave law) entitles eligible employees to up to 20 hours of paid prenatal leave in a 52-week period, beginning January 1^st. The state’s informal guidance now provides employers with answers to some of the questions they have grappled with over the last six months while working to implement this new benefit prior to the end of the year. We summarize and cite some of the most salient points below.

Q.  Can an employer use a more generous sick leave or PTO policy to satisfy this requirement?

A.  No. These 20 hours of paid prenatal leave are in addition to any paid time off benefits the employer currently provides, whether by law (e.g., New York paid sick leave) or as a voluntary offering.

• “[T]his 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.”
• “Paid Prenatal Leave is a stand-alone benefit available to employees seeking prenatal healthcare services.”

Q.  Can employees be required to exhaust their other available paid time off benefits before using paid prenatal leave?

A.  No. Employees can choose whether to use their paid prenatal leave before or after their other available paid time off benefits, including their New York paid sick leave. 

• “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.”​

Q.  Can employees use paid prenatal leave for pre-pregnancy or postpartum events?

A.  Yes and no. It appears that employees can use paid prenatal leave for pre-pregnancy care related to a future pregnancy as well as end-of-pregnancy care, but not for any postpartum care following childbirth.

• “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.”

Q.  Can employers require a doctor’s note?

A.  No. Employers cannot require verification of an employee’s eligibility for paid prenatal leave or other documentation of an employee’s need for the absence.

• “Are employees required to submit medical records or documents to their employer?  No, and employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use Parental Leave.”

Q.  Is the “52-week period” for purposes of calculating the 20-hour cap equal to a calendar year?

A.  No. The “52-week period” is measured looking forward from the first time that an employee uses paid prenatal leave.

•  “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.”
• “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.”

Q.  Does this apply to all private-sector employers in New York?

A.  Yes. All private employers are covered by the requirements equally, regardless of number of employees.

• “Does Employer size matter?  No, all private sector employees are covered regardless of size.”

Q.  Are all employees working in New York eligible for paid prenatal leave?

A.  Yes. All employees working in New York may be eligible for this benefit, from their first day of employment. There is no requirement that an employee have a certain length of service or full-time status. That means part-time employees, temporary employees, and even paid interns may be eligible for 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.”

Q.  Does an employee need to be pregnant in order to be eligible for this benefit?

A.  No. As noted previously, employees can use paid prenatal leave for fertility treatment or care appointments. However, only the person who is seeking to become pregnant will be eligible.

• “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.”

Q.  At what rate should paid prenatal leave be paid?

A.  The employee’s “regular rate of pay” or the applicable minimum wage, whichever is greater. 

With only weeks left until these new requirements take effect, New York employers should review their implementation plans for this new benefit and update and publish their relevant leave policies to reflect compliance with the statute prior to January 1, 2025.