The New York City Department of Consumer and Worker Protection (“DCWP”) has recently amended the Earned Safe and Sick Time Act (“ESSTA”) to incorporate New York state’s paid prenatal leave, while including its own requirements that go beyond State law. Effective July 2, 2025, employers operating in New York State and New York City must comply with both the New York State paid prenatal leave requirements and the newly amended ESSTA rules.
As a reminder, New York State became the first state to mandate paid prenatal leave on Jan. 1, 2025, requiring private sector employers to provide pregnant employees with 20 hours of prenatal personal leave during any 52 week calendar period. The leave can be used for pregnancy related health care appointments, such as physical examinations, medical procedures, monitoring, testing, discussions with a health care provider to ensure a healthy pregnancy, end of pregnancy care and fertility treatment. To be eligible for paid prenatal leave, employees do not need to work for a specified period of time: all employees, including newly hired employees, are automatically entitled to this benefit. With that said, only pregnant employees may use paid prenatal leave, not their spouse or partner.
The DCWP’s amended rules incorporate most of the state’s paid prenatal leave requirements. Likewise, it mandates employers to provide 20 hours of paid prenatal leave during any 52 week period for pregnant employees, not their spouses or partners, for the same pregnancy related health care appointments described above. However, the amended rules have created new obligations for employers that are either in conflict or absent from the state’s law. The most notable changes include the following:
- Written Record of Use of Leave. When an employee uses paid prenatal leave, an employer must provide the employee with written documentation, such as a pay stub or pay statement, informing them of the amount of paid prenatal leave used during the pay period and the total amount of paid prenatal leave available for use. Employers must maintain records of each employees total balance of paid prenatal leave for each pay period.
- Written Policy. Employers must maintain a written paid prenatal leave policy that meets the requirements of the ESSTA, which must be distributed upon commencement of employment, within 14 days of the effective date of any changes to the policy and upon request by an employee. The minimum requirements that an employer’s policy must meet can be found on pages 30 and 31 of this FAQ.
- Reasonable Documentation. Employers may require reasonable written documentation that the use of paid prenatal leave was for purposes authorized by law if the absence was more than three consecutive days. However, employers are not permitted to request documentation or ask employees about their condition when using such leave under the State’s law.
- Separate Leave. Like the State’s prenatal leave law, employees cannot be forced to use or exhaust other leave in lieu of paid prenatal leave. However, if there is mutual consent between the employer and employee, the amended rules allow an employee’s schedule to be changed instead of using paid prenatal leave.
Bond attorneys are available to guide employers through the implementation of the DCWP’s amended rules. If you have any questions about the information presented in this memo, please contact James E. McGrath, III, Jillian R. Jin, or the attorney at Bond with whom you are regularly in contact.