Original post date: December 12, 2024
Beginning January 1, 2025, employers must provide at least 20 hours of paid prenatal personal leave (“PPPL”) during any 52-week calendar period, in addition to the existing statutory paid sick leave entitlement.
New York State recently released a website, including FAQs, regarding the new PPPL mandate. It remains to be seen whether the State will also release proposed and/or final regulations on the new mandate.
With less than a month to go before the New York PPPL mandate goes into effect, New York State released administrative guidance to help employers navigate the new requirements. Key FAQs provide the following insights and reminders for employers:
- Employee Eligibility: While the mandate itself is silent on whether the New York State Paid Sick Leave employee eligibility requirements apply under the PPPL mandate, the FAQs confirm that all employees working for private-sector employers are covered. This includes full-time, part-time, exempt, and non-exempt workers.
- Employer Coverage: The FAQs also confirm that all private-sector employers, regardless of size, are covered by the PPPL mandate.
- Amount of Leave and Benefit Year: As noted above, under the impending mandate, each eligible employee gets 20 hours of PPPL during any 52-week calendar period. However, in discussing the 52-week period, the non-binding FAQs state that the first time the employee uses PPPL begins the 52-week period for that employee. The FAQs further note that, for example, the triggering date is the date that the leave is first recorded on an employee’s timesheet.
- Reasons For Use: The mandate provides that PPPL can be used by employees to receive health care services 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 pregnancy. Notably, the FAQs provide that PPPL can only be used by the pregnant employee and cannot be used by a pregnant individual’s spouse, partner, or other support person. Additionally, the FAQs offer some additional nonexclusive examples of appropriate uses of PPPL, including fertility treatment or care appointments, in vitro fertilization, and end-of-pregnancy care appointments. However, the FAQs note that PPPL cannot be used for post-natal or postpartum appointments.
- No Accrual: The FAQs make clear that employees do not accrue PPPL. All employees automatically have 20 hours of PPPL beginning January 1, 2025, or upon their date of hire, whichever is later.
- No New Hire Waiting Period: Regarding new hires, the FAQs confirm that PPPL is consistent with the New York State Paid Sick Leave Law in that it does not allow employers to provide any waiting period on when new hires can begin using the relevant time off benefit. In other words, eligible new hires can use PPPL for a covered absence immediately without satisfying a minimum amount of time worked before accessing the PPPL.
- Interplay With Other Leaves: The PPPL mandate states that PPPL is in addition to sick leave provided under the New York State Paid Sick Leave Law. The FAQs appear to go a step further by stating that PPPL is a separate benefit from other leave policies and laws, and that the 20 hours of PPPL are in addition to any other available leave options.
- No Retaliation: The FAQs reiterate that retaliation is prohibited and provide a few nonexclusive examples of retaliation. One such example is employers reducing other leave options like New York State Paid Sick Leave when the employee uses PPPL.
- No Paystub Notification Requirement: The FAQs confirm that the PPPL mandate does not specifically require recordkeeping on paystubs. The guidance further reminds employers that it is a best practice to maintain clear records of available types of leave and amounts of types of leave used.
- Notice & Documentation: Regarding employee notice to their employer, the FAQs state that employees should request PPPL like any other time off by using existing notification/request procedures within their workplaces. The New York Department of Labor encourages employees to give employers advance notice of leave requests and encourages employers to communicate how to request leave to their employees. The FAQs further explain that employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use PPPL.
- Rate of Pay: The FAQs also reiterate that PPPL must be paid at the employee’s regular rate of pay, or the applicable minimum wage under New York State law, whichever is greater.
The PPPL mandate and corresponding new FAQs remain silent on several important topics. Some examples include (a) how the PPPL mandate operates in the context of union workers, (b) whether the PPPL mandate has a written policy requirement, and (c) what happens to unused PPPL at year end.
Considerations:
- Review existing sick leave or PTO policies and practices, and assess the interplay with the PPPL requirements, and do the same assessment for any related attendance, conduct, anti-retaliation, and discipline policies and practices.
- Determine whether to implement new policies and practices to ensure compliance with the PPPL mandate.
- Train supervisory and managerial employees, as well as HR, on the new requirements.
(JD Supra)
What is the Paid Prenatal Leave Law?
This is an amendment to Labor Law Section 196-b that provides employees with 20 hours of paid leave time per year to be used for prenatal healthcare service appointments during their pregnancy or related to their pregnancy. This new law takes effect on January 1, 2025.
How does Paid Prenatal Leave relate to NYS Sick Leave in Labor Law 196-b?
Paid Prenatal Leave is a separate employee benefit from NYS Sick Leave (paid or unpaid). Prenatal health care appointments may be covered by NYS Sick Leave, Paid Prenatal Leave, or an existing employer’s leave policy. An employer cannot require an employee to choose one leave type over another or require an employee to exhaust one type of leave before using Paid Prenatal Leave. Paid Prenatal Leave is a stand-alone benefit available to employees seeking prenatal healthcare services.
Who is covered by the Paid Prenatal Leave Law?
All employees working for private-sector employers. Private-sector employers include persons, corporations, limited liability companies, or associations employing any individual in any occupation, industry, trade, business, or service, regardless of part-time status, and overtime exempt status.
Is this leave time in addition to existing leave policies and the NYS Sick Leave Law?
Yes, this is a new legal requirement that provides a separate benefit from other leave policies and laws. Employees are entitled to 20 hours of Paid Prenatal Leave in addition to any other available leave options.
Does employer size matter?
No, all private-sector employees are covered regardless of size.
Can spouses, partners, or other support persons use Paid Prenatal Leave to attend prenatal appointments with a pregnant person?
No, Paid Prenatal Leave may only be used by the employee directly receiving prenatal health care services.
Employees
Does an employee accrue Paid Prenatal Leave?
No, all employees automatically have 20 hours of Paid Prenatal Leave.
Do brand-new employees have Paid Prenatal Leave?
Yes, the law does not require employees to accrue Paid Prenatal Leave or work for an employer for a minimum amount of time before accessing Paid Prenatal Leave. All employees will be entitled to 20 hours of Paid Prenatal Leave per year after January 1, 2025.
Can employees use Paid Prenatal Leave in hourly increments?
Yes, employees must use this benefit in hourly increments.
What rate of pay applies to this leave?
An employee must be paid at the employee’s regular rate of pay, or the applicable minimum wage established by the Labor Law, whichever is greater, for the use of Paid Prenatal Leave.
What health care services are covered?
Paid Prenatal Leave covers 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.
Does this law apply to fertility treatment or care appointments, including in vitro fertilization?
Yes.
Does this law apply to end-of-pregnancy care appointments?
Yes.
Does this law apply to post-natal or postpartum appointments?
No.
Are employees required to submit medical records or documents to their employer?
No, and employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use Paid Prenatal Leave.
Can an employer ask me for details about my prenatal appointments?
No, and employers cannot ask employees to disclose confidential information about their health
condition(s) as a condition of requesting to use Paid Prenatal Leave.
What information do employees need to disclose to their employer to use Paid Prenatal Leave?
Employees should request time off like any other time off by using existing notification/request procedures within their workplaces. The Department encourages employees to give employers advanced notice of leave requests and encourages employers to communicate how to request leave to their employees.
If an employee requests Paid Prenatal Leave, can the employer require the employees to use a certain leave type if there is more than one option available?
No. The employee can use Paid Prenatal Leave for health care services related to their pregnancy, or they may use other available leave they have available.
When does a 52-week period begin each year?
The first time the employee uses Paid Prenatal Leave begins the 52-week period for that employee. For example, the triggering date is the date that the leave is first recorded on an employee’s timesheet.
What if an employee becomes pregnant more than once in a 52-week period?
An employee may use Paid Prenatal Leave on more than one pregnancy per year, but only 20 hours are available in a 52-week period. Any Paid Prenatal Leave hours remaining from the first pregnancy may be used during the second pregnancy if the second pregnancy is within the same 52-week period.
How many times can eligible employees use this benefit in one year?
This leave may be used throughout a 52-week period until the 20 hours are exhausted.
What if an employee needs more than 20 hours of leave or requests a different type of accommodation?
Employees may have additional options provided by other laws. Utilizing Paid Prenatal Leave does not preclude employees from asserting rights under other laws. As an example, employees should review the federal Pregnant Workers Fairness Act.
Employers
Can employers provide more than 20 hours of Paid Prenatal Leave?
Yes, nothing in the law restricts an employer from providing more than 20 hours.
Do I have to pay this benefit out if my employee does not use it?
No, if an employee separates from the employer, then the employer has no obligation to pay the employee for unused Paid Prenatal Leave hours.
Does an employer have to identify/classify Paid Prenatal Leave differently on pay stubs or in leave accrual banks?
While the law does not specifically require recordkeeping on paystubs, 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.
Employers cannot retaliate against employees for requesting Paid Prenatal Leave. What are some examples of retaliation?
A few examples include employers reducing other leave options like NYS Sick Leave when the employee uses Paid Prenatal Leave, employers changing work locations or hours after a Paid Prenatal Leave request is made.
Draft Policy Language:
“Organization X will provide employees with 20 hours of paid prenatal personal leave during any 52-week calendar period. Paid prenatal personal leave is in addition to leave provided under New York’s Sick Leave Law, local and federal law.
Paid prenatal personal leave may be used for healthcare services during or related to your pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with your healthcare provider related to your pregnancy.
Paid prenatal personal leave may be taken in hourly increments and will be compensated at your regular rate of pay or the applicable minimum wage, whichever is greater.
If your need for leave is foreseeable, provide notice as soon as possible. If unforeseeable, provide notice as soon as practical. You are not required to provide documentation supporting your need for leave.”
Upon return to work following any paid prenatal personal leave, you will be restored to the position you held prior to taking leave or a position with the same pay and other terms and conditions of employment.
You will not be compensated for unused paid prenatal personal leave when your employment ends.
The Company will not retaliate against employees who request or take leave in accordance with this policy.
New York State Paid Sick Leave Websites:
https://www.ny.gov/programs/new-york-paid-sick-leave
https://www.ny.gov/new-york-paid-sick-leave/new-york-paid-sick-leave
BURR CONSULTING, LLC 