One – The first, but likely not the last, of its kind
On April 19, 2024, the State of New York made a significant amendment to New York Labor Law § 196-b regarding sick leave requirements and established a provision for paid prenatal personal leave tailored specifically for pregnant employees, supplementing existing paid leave entitlements. The law mandating this entitlement to paid prenatal leave is the first of its kind in the United States. The amendment takes effect in New York on January 1, 2025.
Two – What is paid prenatal personal leave
In addition to sick leave granted pursuant to New York labor laws, this amendment requires employers to provide their employees with up to 20 hours of paid prenatal personal leave during any 52-week calendar period so pregnant employees can attend prenatal medical appointments and procedures.
Three – Appointments and procedures covered by prenatal leave
Pregnant employees may take the prenatal leave for health care services they receive during their pregnancy or related to the pregnancy including:
- Physical examinations
- Medical procedures
- Monitoring and testing
- Discussions with a health care provider related to the pregnancy
Four – Timing
A pregnant employee may take the 20 hours of paid prenatal personal leave in hourly increments and employers must pay for such leave in hourly installments. Employees are to receive compensation for paid prenatal personal leave at the employee’s regular rate of pay or the applicable minimum wage, whichever is greater. Although the amendment does not specifically address how an employee earns prenatal leave, it does not appear to be an accrued benefit and a pregnant employee may be able to take paid prenatal personal leave immediately upon being hired. The amended law specifically states that an employer does not need to pay an employee for unused days. In addition, paid prenatal personal leave is not a benefit that is paid out upon an employee’s termination, resignation, retirement, or other separation from employment.
Five – What it means for Intended Parents and Surrogates
When entering into New York gestational surrogacy arrangements that will extend into 2025 and beyond or where a surrogate is employed in the State of New York, surrogacy agencies, intended parents, surrogates, and their attorneys should account for this new provision. This provision can be considered a win-win for all parties to the gestational surrogacy agreement. A gestational surrogate is entitled to take up to 20 hours of paid leave from work for her medical appointments without impacting her personal days off and, therefore, intended parents may not need to reimburse the gestational surrogate for such time.
This email is not legal advice, but solely for informational purposes.