At the beginning of this year, New York became the first state in the nation to mandate that employers provide all employees with paid time off for purposes of prenatal care and medical care related to pregnancy.
The New York City Department of Consumer and Worker Protection (DCWP) recently amended its NYC Earned Safe and Sick Time Act (ESSTA) rules to address the provision of paid prenatal leave. As detailed in a previous Alert, since January 1, 2025, the New York State Paid Sick Leave Law (PSLL) has required all private-sector employers, regardless of size, to provide paid prenatal leave banks to all full-time and part-time employees. The DCWP now has incorporated New York State’s mandatory paid prenatal leave requirements into the existing ESSTA rules applicable to all private, nonprofit and household New York City employers.
Effective July 2, 2025, as described in the ESSTA’s updated FAQs, the ESSTA amendments require that New York City employers take affirmative steps to comply with the updated rules, which includes new pay stub requirements, updates to policies and the provision of a new notice. Below is a high-level summary of the existing New York State PSLL paid prenatal leave requirements and the ESSTA’s new obligations that employers in New York City must implement.
Statewide Paid Prenatal Leave Requirement Under the PSLL
At the beginning of this year, New York became the first state in the nation to mandate that employers provide all employees with paid time off for purposes of prenatal care and medical care related to pregnancy. Effective January 1, 2025, the New York State PSLL was amended to provide employees with 20 hours of paid prenatal leave in a 52-week period to be used for healthcare services during pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with healthcare providers related to the pregnancy.
The 52-week period for paid prenatal leave under the PSLL begins on the first day an employee uses paid prenatal leave. The leave does not carry over from year to year, though it can be used for more than one pregnancy during the 52-week period. According to FAQ guidance on PSLL paid prenatal leave, the leave may not be used for postnatal care, but may be used for fertility treatment (including in vitro fertilization) or care appointments. PSLL paid prenatal leave may be used only by the employee directly receiving the prenatal healthcare services. Employers have no obligation to pay separating employees for unused paid prenatal leave hours.
Both the PSLL and FAQ guidance make clear that paid prenatal leave serves as a separate benefit in addition to any paid or unpaid sick leave entitlement under the PSLL. As paid prenatal leave is a stand-alone benefit, employers may not require employees to exhaust other paid time off or leaves, such as PSLL sick leave or leave under the employer’s own policy, before using paid prenatal leave under the PSLL. Importantly, PSLL paid prenatal leave does not accrue. Instead, all employees automatically have 20 hours of paid prenatal leave available upon hire to use for qualifying reasons in hourly increments.
The FAQs confirm that employees should make requests for paid prenatal leave like any other time off by using existing notification/request procedures within their workplaces. Notably, the PSLL prohibits employers from asking employees to disclose confidential information about their health condition as a prerequisite to using paid prenatal leave, which is defined by regulations to include: (1) individually identifiable health or mental health information, including but not limited to, diagnosis and treatment records from emergency services or health providers; or (2) information that is treated as confidential or for which disclosure is prohibited under another applicable law, rule or regulation. The FAQ guidance further provides that employers may not: (1) require the submission of medical records or documents as a condition of requesting paid prenatal leave; or (2) ask employees to provide details about their prenatal appointments as a condition of requesting paid prenatal leave.
The PSLL statute does not require specific recordkeeping practices. However, the PSLL’s FAQ guidance advises that “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.” Therefore, although recordkeeping of employees’ paid prenatal leave usage and advice to employees as to their leave balances is not required under New York State law, New York State employers outside New York City may also want to track and provide this information to employees, which will also make it consistent with the requirements to do so under the DCWP’s amended ESSTA rules, effective July 2, 2025, as discussed below.
New NYC Employer ESSTA Requirements
Beginning July 2, 2025, all private, nonprofit and household employers in New York City need to comply with the ESSTA’s amendments and new requirements.
First, for each pay period that an employee utilizes paid prenatal leave, employers must inform the employee of the amount of paid prenatal leave used during the relevant pay period, as well as the total balance of paid prenatal leave still available for use in the 52-week period on their pay stub or by separate written documentation. This requirement mirrors the notice obligations already in place under the ESSTA for other types of leave and goes beyond what is required under the PSLL. Employers may provide this information to employees via hard copy pay stubs or via an electronic system.
Second, employers must update their current ESSTA policies to incorporate information detailing paid prenatal leave entitlements and eligible use parameters. Safe and sick leave and paid prenatal leave policies must be in a single writing, which may not be split up across multiple documents or locations.
Third, employers also must post the updated version of the Notice of Employee Rights: Safe and Sick Leave poster, which the DCWP revised to include information regarding the right to paid prenatal leave.
The ESSTA’s amended rules also confirm that a New York City employer that fails to provide an employee with a copy of its written safe and sick leave and paid prenatal leave policies, along with any forms or procedures required by the employer related to using either leave, cannot deny the employee permission to use leave or take other adverse actions based on that employee’s failure to comply with the employer’s policy. According to the ESSTA’s amended rules, posting the updated employee rights poster alone will not satisfy the written policy requirements, which are in addition to the notice-posting requirements.
The ESSTA’s amended rules and the DCWP’s FAQ guidance do not explicitly specify monetary penalties for employers’ failure to update and distribute new paid prenatal leave policies or track employees’ leave banks. However, the new FAQs do confirm employers may be subject to a penalty of up to $50 per-employee, per-instance of failure to provide the updated Notice of Employee Rights. As such, all New York City employers must take affirmative steps to: (1) confirm their existing policies are in compliance; (2) ensure employees are being informed of their safe and sick leave and paid prenatal leave balances on their pay stubs or via the employer’s electronic system that provides required information about safe and sick leave and paid prenatal leave; and (3) post the updated version of the Notice of Employee Rights: Safe and Sick Leave poster.
For More Information
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