Key Takeaways
- Following in New York state's footsteps, New York City amended the Earned Safe and Sick Time Act to provide paid prenatal leave benefits for employees to use on health care related to pregnancy.
- The New York City requirements go beyond the state law and include policy, notice, documentation and recordkeeping requirements, which became effective July 2, 2025.
- The state and city laws now provide employees with up to 20 hours of paid leave annually for prenatal care – separate and apart from their sick leave benefits or paid time off benefits – that can be used for physical examinations, testing, fertility treatments, etc.
Although all New York state employees have been eligible for 20 hours of paid prenatal leave since Jan. 1, 2025, employers in New York City now have additional obligations in administering prenatal leave benefits. As we laid out in detail in a previously published alert, the state law provides pregnant employees with 20 hours of paid prenatal leave annually to use during their pregnancy or related to their pregnancy, such as for fertility treatment and end-of-pregnancy care. Not to be outdone, New York City amended the Earned Safe and Sick Time Act (ESSTA) to formally implement the 20 hours of paid prenatal leave mandated by the state for employees directly receiving prenatal health care services and adopted additional obligations for New York city employers concerning required policies, notices, documentation and recordkeeping related to these benefits.
Policies
Under the New York City law, employers must prepare a written policy that covers paid prenatal leave benefits and distribute a copy of it to employees upon hire, within 14 days of the effective date of any changes to the policy and upon request by an employee. The policy must inform employees of their right to 20 hours of paid prenatal leave during any 52-week calendar period, which is separate and apart from their safe and sick leave bank. Moreover, the policy must lay out any rules, limitations and/or conditions on the use of paid prenatal leave, including:
- Notice an employee must provide of a need to use paid prenatal leave and the procedures for doing so
- Written documentation or confirmation of the use of paid prenatal leave that an employee must provide and the employer's policy regarding any consequences of a failure or delay in providing such documentation or confirmation
- The minimum increment or fixed period for the use of paid prenatal leave
- Discipline for misuse of paid prenatal leave
- A statement that the employer will not ask the employee to provide details about the medical condition related to the paid prenatal leave and that any information the employer receives about the employee's use of the paid prenatal leave will be kept confidential and will not be disclosed to anyone without the employee's written permission or as required by law
Under the New York City law, employers must maintain written safe and sick leave policies and paid prenatal leave policies in a single writing, which means that they should not be split up across multiple documents or locations. However, a multistate employer may supplement a national policy with a New York City-specific policy, provided that the national and local policies are not confusing or contradictory.
Notices
Employers must also post and provide employees with an updated copy of the Notice of Employee Rights related to ESSTA that now includes a section on paid prenatal leave benefits. The notice clarifies that the paid prenatal leave benefits are in addition to those provided by ESSTA and that this benefit may be used only by employees who are pregnant and not, for example, by employees who attend treatments or appointments with a pregnant spouse or partner.
Requests for Leave
Although the state law does not require any advance notice for employees to use paid prenatal leave, New York City's version allows employers to require reasonable notice. Where the leave is foreseeable, employers may require that an employee provide notice pursuant to the written policy. Employers may require that this notice be in writing, but they cannot demand that employees provide it more than seven days prior to the date the leave would begin.
If the leave is not foreseeable – defined as when the employee is not aware of the need to use the paid prenatal leave seven days or more in advance – employers may require that employees provide notice as soon as practicable. Examples of methods employers may require that employees use to provide notice include, but are not limited to, having the employee call a designated phone number or send an email to a designated address at which an employee can leave a message, or having the employee submit a leave request in a scheduling software system, provided the employee has access to such system on nonwork time and has been trained on and given written instructions about how to use the system. These methods, however, cannot require that an employee appear in person at a worksite or deliver any document to the employer prior to using paid prenatal leave.
Recordkeeping
As with ESSTA, employers will need to document an employee's use of their paid prenatal leave benefit. Specifically, employers need to make a record of the date, time and amount paid whenever an employee uses paid prenatal leave. In addition, for each pay period, an employer must provide employees with an accounting of how much paid prenatal leave was taken in that pay period as well as the balance of the amount that remains. Employers may provide this accounting on the employee's pay statement or in another form of written documentation given to the employee.
Documentation
While the state law does not require employees to submit medical records in order to use paid prenatal leave, the city rules permit employers to request documentation in certain circumstances. If an employee's use of paid prenatal leave results in their absence for more than three consecutive workdays, an employer may require reasonable written documentation that the leave taken was for a purpose authorized under the law. Reasonable written documentation includes notes signed by a licensed clinical social worker, licensed mental health counselor or other licensed health care provider indicating the need for the paid prenatal leave used. The employee must be allowed a minimum of seven days from the date they return to work to obtain such documentation. If the licensed health care provider charges the employee a fee for the requested documentation, the employer is responsible for reimbursing the employee for the fee and all reasonable costs or expenses incurred in obtaining the documentation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
