The mandatory paid prenatal leave is intended to expand employee access to high-quality prenatal care and prevent maternal and infant deaths in New York.

Touted as the first of its kind in the nation, New York has become the first state to require private employers to provide employees with a separate bank of paid prenatal leave. According to Governor Kathy Hochul’s approved 2024-2025 budget, beginning January 1, 2025, private employers will be required to provide employees with 20 hours of paid prenatal leave in a 52-week calendar period, down from her original proposal of 40 hours annually. Hitting the stage sooner, however, is the new requirement that both public and private employers provide 30 minute paid breast milk expression breaks for nursing employees, which goes into effect June 19, 2024.

Paid Prenatal Leave

The mandatory paid prenatal leave is intended to expand employee access to high-quality prenatal care and prevent maternal and infant deaths in New York. The amendment to New York Labor Law § 196-b is aimed at allowing pregnant employees to attend prenatal medical appointments, physical examinations and discussions with healthcare providers related to the pregnancy.

As detailed in the Governor’s April 22, 2024 Fiscal Year 2025 Budget Agreement press release, Governor Hochul’s office confirmed that the 20 hours of paid leave for prenatal care is in addition to private employers’ existing requirements to provide paid sick and safe leave to eligible employees under New York State and New York City laws. The governor’s office says that requiring a separate prenatal leave bank for employees will also build on New York’s previous actions to support new parents and improve mental health, including the current provision of up to 12 weeks of paid parental leave benefits under New York’s Paid Family Leave law. Notably, such paid family leave is only available for use after the birth of a child, not for prenatal conditions.

Employees may take the new allotment of paid prenatal leave in one-hour increments and must receive compensation for such time at their regular rate of pay or the applicable minimum wage, whichever is greater. Employers are not required to pay employees for any unused paid prenatal leave upon separation from employment. Additionally, the amendment does not provide for a waiting period before the paid prenatal leave starts to accrue or may be used. The amendment is silent, however, on accrual rate for the new prenatal paid leave.

Paid Breast Milk Expression Breaks

The state’s approved 2024-2025 budget also requires both public and private employers in New York to provide employees with 30 minutes of paid break time for breast milk expression for employees who are nursing, amending New York Labor Law § 206-c. New York law currently requires employers to provide employees with reasonable unpaid break time for breast milk expression at least once every three hours or as reasonably requested by the employee. Beginning on June 19, 2024, however, New York employers will need to provide such employees with 30 minute paid breaks for this purpose, and must also allow employees to use other paid breaks or meal time for purposes of expressing breast milk each time they have a reasonable need to do so in excess of 30 minutes. Paid break time for breast milk expression requirements will apply for up to three years following childbirth.

Update, June 19, 2024: The New York State Department of Labor’s (DOL) updated guidance states that employees “are entitled to as many 30 minute paid breaks as [they] need” per work day. However, the guidance also states that employers are required to provide employees with 30 minutes of paid break time when they reasonably need to express breast milk. In doing so, the DOL recognizes that the number of times a day an employee needs to take a break to express breast milk is unique to each employee.

Notably, employers may not require employees to make up the time they used as breaks to express breast milk. Furthermore, while employers are not required to alter an employee’s work schedule to accommodate breast milk expression, the DOL recommends “that employers allow for flexible work hours, job sharing and/or part time scheduling to accommodate employees with children of nursing age.” Additionally, while employers may not require employees to complete work while expressing breast milk, employees may voluntarily choose to do so.

What This Means for Employers

We expect the New York Department of Labor (DOL) to issue further guidance on both of these new requirements. While employers await guidance from the DOL, any businesses employing workers in New York should actively take steps now to update their relevant leave policies and procedures in order to ensure compliance with the new prenatal leave requirements. Employers with New York employees should also update their breast milk expression policies to reflect the new requirements that such time be paid. New York employers may also want to provide training to frontline supervisors and managers on the new legal requirements to maximize compliance. We will continue to monitor developments and provide additional information once it is made available. Employers in states other than New York should also be mindful that their own legislatures may soon follow suit in what could become a trend to require that private employers provide paid prenatal leave for employees.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Katelynn Gray, Maria Cáceres-Boneau, Gregory Slotnick, Liran Messinger, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.