What You Need to Know:
- As we previously reported, earlier this year a new paid prenatal personal leave entitlement was added to Section 196-b of the New York Labor Law, i.e., the New York State Paid Sick Leave Law.
- 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.[1]
- After much anticipation, 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.
Next Steps: As the PPPL mandate’s January 1, 2025 effective date is less than a month away, here are some next steps for employers to consider:
- 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.
- Monitor the NY State’s PPPL website for the release of additional administrative guidance, updated FAQs, and potential rulemaking on employers’ paid prenatal personal leave compliance obligations.
With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their favorite Seyfarth attorney for solutions and recommendations on addressing compliance with nationwide paid leave requirements. To stay up-to-date on paid leave developments in New York and beyond, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.
[1] For more information on the New York State Paid Sick Leave Law, see our prior Legal Updates here, here, here, and here.
“With approximately 900 lawyers across 17 offices, Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide.”
Please visit the firm link to site
