The State of New York on April 20, 2024 enacted its budget for fiscal year 2025 (FY 2025). The budget introduces two significant obligations for employers related to paid leave, which will require them to provide employees (1) up to 20 hours of paid leave for prenatal care and (2) paid lactation breaks. Additionally, the budget sets an expiration date of July 31, 2025 for the state’s COVID-19 paid sick leave law, closing out one of New York’s signature legal efforts enacted during the COVID-19 pandemic.
In passing budget bill S08305C, New York became the first state in the United States to require employers to provide employees with an allotment of paid leave specifically for prenatal care purposes.
Under the law, codified in a new section of the New York Labor Law Section (NYLL) 196-b(4-a), beginning January 1, 2025, every New York State employer must provide qualifying employees with up to 20 hours of paid leave per 52-week period that can be used for health care services during an employee’s pregnancy or related to their pregnancy. The law specifically states that this 20-hour allotment of paid prenatal leave is separate from the up to 56 hours of paid sick leave that employers in New York must otherwise provide qualifying employees.
Further Unpacking Paid Leave for Prenatal Care
The new law states that prenatal leave can be “taken for the 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.” As drafted, the law does not appear to extend prenatal leave benefits to family members of the pregnant employee, such as a spouse or domestic partner.
The law states that employees must be permitted to use this leave entitlement in hourly increments. Employees who take leave must be paid at their regular rate of compensation or the minimum wage, whichever is greater. Employers are not required to pay out unused prenatal care leave at termination.
The law does not contain an accrual requirement, merely stating that all employees must be provided at least 20 hours of prenatal care per year. Thus, unlike New York’s paid family leave and paid sick leave entitlements, which require employees to work a minimum amount of time (either six months or enough time to accrue at a rate of one hour earned for every 30 hours worked, respectively), the new prenatal leave will be available to employees upon commencement of employment.
Employees taking leave for prenatal care are protected from discrimination or retaliation for exercising their rights, similar to the protections available to employees using New York State paid sick leave. Additionally, similar to the use of New York paid sick leave, an employee’s use of prenatal leave under New York law is not considered hours worked, including for overtime purposes, and employers cannot require employees to disclose health information as a condition of using prenatal paid leave.
Unlike the state’s paid sick leave law, employers are not required to create a prenatal paid leave policy or provide specific notice to employees of their rights under the law.
Finally, the law does not create a private cause of action. Employees may instead file a complaint with the New York State Department of Labor.
Paid Lactation Breaks
The budget also amends NYLL Section 206-c to create a new requirement that employers provide lactating employees paid break times of up to 30 minutes to express breast milk for their child. Previously, New York State law required employers to provide “reasonable unpaid break time” for employees to express breast milk. Under the amended law, employers must provide qualifying employees with up to 30 minutes of paid break time “each time such employee has reasonable need to express breast milk for up to three years following childbirth.”
This break time is in addition to any other paid or unpaid break time that the employer already provides, such as meal periods. However, the law requires that employers permit employees to use existing paid break time or mealtime if the employee needs more than 30 minutes to express breast milk.
The law is silent on how frequently it would be reasonable for an employee to use this new paid break benefit; however, previous New York Department of Labor guidance relating to the prior version of this law (that required employers to provide unpaid break time to express breast milk) provides that employees “can take breaks at least once every three hours to pump breast milk.”
Although employers do not need to provide an affirmative notice to employees describing the right to paid lactation breaks, under requirements that became effective in July 2023, which we described in a prior LawFlash, they still need to maintain a lactation-accommodation policy and provide an annual notice to all New York employees regarding the right to request lactation accommodations.
This budget provision takes effect on June 19, 2024.
COVID-19 Sick Leave
The state budget also sets July 31, 2025 as the sunset date for New York State’s COVID-19-related paid sick leave legislation, initially enacted in March 2020. Under the legislation, quickly enacted in the early days of the COVID-19 pandemic, employers must provide up to 14 days of paid sick time to employees who cannot work because they are subject to a mandatory quarantine or self-isolation order due to COVID-19.
Employers are currently required to provide this paid leave in addition to leave under New York State’s Paid Sick Leave law. The initial law did not have a sunset date and while many other jurisdictions also passed COVID-19 supplemental leave laws, New York’s law is the last such law remaining in effect.
Best Practices and Next Steps
In light of the recent changes to various leave requirements in the budget, employers in New York should consider the following:
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following: