To align with the new statewide paid prenatal leave law, the NYC Department of Consumer and Worker Protection has amended its rules related to the NYC Earned Safe and Sick Time Act (“ESSTA”) to address the paid prenatal leave requirement. The amended rules take effect on July 2, 2025.
As a reminder, effective January 1, 2025, employers are required to provide up to 20 hours of paid leave during any 52-week period for employees to attend prenatal appointments or obtain health care services during or related to their pregnancy. Paid prenatal leave is available to employees immediately upon a covered need for same and must be provided in addition to any other available leave options. Employers cannot require employees to disclose confidential information about their health conditions and/or submit medical records or documents in order to use the prenatal leave benefit.
The following are some highlights of the recently amended ESSTA rules regarding paid prenatal leave:
- Similar to the existing paystub reporting requirement under ESSTA, employers are required, for each pay period that an employee uses paid prenatal leave, to inform the employee of the amount of paid prenatal leave used during the relevant pay period and the total balance of paid prenatal leave available for use, either on the employee’s pay stub or in a separate written documentation.
- In addition to maintaining a written safe and sick time policy that meets certain minimum requirements (as is currently required by ESSTA), employers must maintain a written paid prenatal leave policy that addresses, at a minimum: (i) the availability of a separate bank of 20 hours of paid prenatal leave during any 52-week calendar period, (ii) minimum increment and advance notice requirements, (iii) discipline for employee misuse, and (iv) a statement that the employer will not ask the employee to provide details about the medical condition that led the employee to use prenatal leave and any information received by the employer will be kept confidential. The policy must be distributed to employees upon commencement of employment, within 14 days of the effective date of any policy changes, and upon request by the employee.
- Consistent with NYS Department of Labor’s paid prenatal leave guidance, the amended rules provide that employees cannot be required to use other leave in lieu of paid prenatal leave, exhaust other leave before using paid prenatal leave, or use or exhaust paid prenatal leave before using other leave. However, upon mutual consent of the employer and employee, the amended rules also provide that an employee’s schedule may be changed in lieu of using paid prenatal leave.
- The amended rules also make clear that employers are prohibited from requiring employees, as a condition of taking paid prenatal leave, to work additional hours to make up for the original hours for which such employee used paid prenatal leave or to search for or find a replacement employee to cover the hours during which the employee uses paid prenatal leave.
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Employers are encouraged to review their current leave policies and practices to ensure compliance with the amended rules. As always, we will continue to monitor and report developments in this area.