NYC Amends Earned Safe and Sick Time Act Rules To Incorporate State Paid Prenatal Leave

New York, N.Y. (July 17, 2025) - Since January 1, 2025, New York has required private-sector employers (of any size) to provide employees working in New York State with up to 20 hours of paid prenatal leave within a 52-week period for health care services related to an employee’s pregnancy (including fertility treatment or care appointments). Paid prenatal leave is in addition to, and is a separate leave right from, New York sick leave. This means employers must provide New York employees with up to 40 or 56 hours of paid or unpaid sick leave (depending on employer size) as well as up to 20 hours of paid prenatal leave.

On June 3, 2025, the New York City Department of Consumer and Worker Protection (DCWP) amended its rules under the New York City Earned Safe and Sick Time Act (ESSTA) to incorporate New York State’s paid prenatal leave requirements. The amended rules took effect on July 2, 2025, and place new notice and recordkeeping requirements on employers that are not included in the state paid prenatal leave law.

Accordingly, employers with New York City employees must: (i) adopt written policies (with certain content requirements); (ii) distribute an updated Notice of Employee Rights; and (iii) inform employees of their paid prenatal leave usage and balance each pay period. This Client Alert summarizes the new compliance requirements for employers with employees based in NYC.

Written Policy Requirements

ESSTA’s requirement that employers adopt written safe and sick leave policies now also apply to paid prenatal leave. This means that NYC employers are required to maintain written safe and sick time and paid prenatal leave policies in a single writing, which must be distributed to employees upon the commencement of their employment, as well as within 14 days of any policy changes, and upon the employee’s request. With regard to paid prenatal leave, the written policies must clearly state the availability of a separate bank of 20 hours of paid prenatal leave during any 52-week calendar period, as well as any limitations or conditions placed by the employer on the use of such leave, including, (i) requirements that the employee provide notice to use such leave and the procedures for providing the required notice, (ii) any requirement for the employee to provide reasonable written documentation regarding the use of such leave, (iii) any reasonable minimum increment or fixed period for the use of paid prenatal leave, (iv) any policy regarding discipline for employees that abuse paid prenatal leave, and (v) a statement detailing the employer’s commitment to maintaining the confidentiality of any medical or leave-related information. In addition to the written policy requirement, employers must provide employees with a Notice of Employees Rights upon hire and when their rights change. DCWP updated the required notice on May 30, 2025 to include information on paid prenatal leave.

Leave Usage

An employee does not need to work a minimum number of hours to accrue paid prenatal leave. All 20 hours of paid prenatal leave are available on the date the employee first begins using leave and an employee may decide how much paid prenatal leave to use. Although the amended rules provide the increment of use is not to exceed one hour per day, New York State allows paid prenatal leave to be taken in hourly increments. Because the NYC rule applies “unless otherwise in conflict with state or federal or regulations,” employees should be provided paid prenatal leave in hourly increments in accordance with state law. Additionally, unless state or federal law provides otherwise, employers also may not require an employee to use other leave in lieu of paid prenatal leave, exhaust other leave before using paid prenatal leave, or use or exhaust paid prenatal leave before using other available leave.

Documentation

When an employee's use of paid prenatal leave results in an absence of more than three consecutive workdays, the amended rules allow an employer to request reasonable written documentation that confirms the use of paid prenatal leave was for an authorized purpose. This, however, appears to be in conflict with state law, which is silent on the issue of documentation. Guidance issued by New York State provides that employers are prohibited from requesting personal or confidential information about the employee’s health or the nature of the prenatal visit and may not request medical records.

Balance and Usage Notification

Employers must inform New York City employees of the amount of paid prenatal leave used during the relevant pay period and the total balance of paid prenatal leave that remains available for use. This information can be provided on their pay statement or other permitted documentation or in a separate writing. Employers should consult their payroll providers to determine whether this information can be included in pay statements or evaluate whether this information can be added to their Human Resource Information System benefits portal.

Recordkeeping

The amended rules also bring paid prenatal leave under ESSTA’s record-keeping requirements. Accordingly, employers with New York City employees must create and retain records relating to the use of paid prenatal leave for three years including: (i) the date and time of each instance of paid prenatal leave used by the employee; (ii) the amount the employee was paid for prenatal leave; (iii) and the amount of paid prenatal leave used and the total balance remaining during each pay period.

Employee Relief for Violations

The amended rules enable employees to obtain relief for violations, including (i) the full amount of any underpayment of wages owed plus interest, (ii) liquidated damages up to 100% of the total amount of wages found to be due, and (iii) a civil penalty of $500 for each failure to pay wages owed. Additionally, if the employer is found to have retaliated against the employee for taking paid prenatal leave, the employee may recover all appropriate relief, including injunctive relief, liquidated damages up to $20,000, rehiring or reinstatement, compensation for lost wages or front pay, and civil penalties between $1,000 and $10,000.

Employers with employees in NYC should review their existing policies and practices to ensure they are compliant with the amended rules and make any necessary revisions to ensure continued compliance.

If you have any questions about these developments or require assistance with compliance, Lewis Brisbois’ New York employment attorneys can assist. For more information on Lewis Brisbois’ capabilities in this area, visit our Labor & Employment Practice page.

Author:

Victoria Scaglione, Associate,

Editor:

Diane L. Waters, Partner and Co-Chair of Employment Advice & Counseling Practice