Paid prenatal care leave is about to become a national women's health initiative. Now New York has become the first state to mandate an independent right to paid prenatal leave.
In April, New York Governor Kathy Hochul signed an amendment to New York labor law to require employers to provide up to 20 hours of paid leave in a 52-week period for pregnant employees to attend appointments and prenatal medical procedures. The provision goes into effect on January 1, 2025.
“I think hopefully other states and other governors who share a similar set of values in prioritizing women's health will follow suit,” said Reshma Saujani, founder and executive director of Moms First, a nonprofit campaign Girls Who Code.
The federal government's Family and Medical Leave Act provides job-protected leave for prenatal care or when an expectant mother is unable to work due to her pregnancy. The law provides covered employees with up to 12 workweeks of leave in a 12-month period. However, while your employment is protected during this time, the leave is unpaid.
Washington, DC, has enacted a law similar to what New York recently passed, allowing up to two weeks of paid leave for pregnancy-related medical care. D.C. law also allows for another 12 weeks of paid leave after the birth of a baby.
These laws are based on medical research that shows that prenatal health care tends to lead to better health outcomes for mothers and their babies.
“The concept is that working mothers should not have to dip into their sick leave bank and draw on that bank for medical care associated with having a baby,” said Harris M. Mufson, a partner at the Gibson law firm, Dunn & Crutcher and a member of the firm's labor and employment practice. “There is a view that they should have a separate bank for that condition, that that is appropriate and adequately supports working mothers.”
There is no precedent for federal labor law
Although the FMLA grants eligible employees the right to take up to 12 weeks of unpaid leave each year, no federal law generally requires private employers to provide paid leave to employees who need time off for family and medical needs. Additionally, there is no federal law that covers paid time off for prenatal care.
Paid leave is not a partisan issue, but it hasn't necessarily been a priority for lawmakers, Saujani said. “At the federal level, it was never approved because I don't think it was ever prioritized.”
At the state level, more than a dozen states and at least one local jurisdiction have passed laws requiring private employers to provide paid family and medical leave to their employees. All laws allow paid leave for the birth of a child or to care for a seriously ill family member, and some states also allow paid leave for other reasons, such as prenatal care, according to Westlaw.
As of January, about 14 states, including California, Colorado, Connecticut and Delaware, as well as Washington, D.C., and the city and county of San Francisco, have enacted paid family and medical leave programs.
For its part, New York added the new prenatal protections to its paid sick leave laws. According to Westlaw, at least 18 states, plus Washington DC and the Commonwealth of Puerto Rico, have passed state paid sick leave laws. Three of these state laws (Illinois, Maine, and Nevada) allow you to take paid leave for any reason, not just sick leave.
States More Likely to Follow New York's Lead
The states most likely to pass laws requiring paid leave for prenatal care are those that tend to offer greater employee protections, such as California, Colorado, Massachusetts, Washington, Illinois, New Jersey and Connecticut, said Kelly M. Cardin, Ogletree shareholder. Deakins, who focuses on employment law. “I think it's something that could spread,” she said.
The concept of requiring paid prenatal benefits could be especially compelling given the federal Pregnant Workers Fairness Act, which President Biden signed into law in December 2022 and took effect on June 27, 2023. In April, the Equality Commission The U.S. Employment Opportunity Agency issued its final regulations to carry out the law, which will go into effect on June 18.
Generally, the PWFA requires employers to provide employees with a “reasonable accommodation” to the known limitations of pregnancy, childbirth, or related medical conditions, unless doing so would cause an undue hardship. The law does not replace the most protective laws of workers in this regard. More than 30 states and cities have laws requiring employers to provide accommodations to pregnant workers.
Given the federal government's focus on pregnant workers through the PWFA, states, especially more progressive ones, are likely to follow through with additional protections, Cardin said. It also follows a general trend of some states trying to level the playing field for workers when it comes to employee benefits.
Few Workers Take Advantage of Paid Leave Programs
Of course, it's not just about passing laws; It's important to make sure women know they exist, Saujani said.
Although a state like New York has a widely praised paid family leave program, utilization of the program remains low, with only 2% of workers eligible. according to data provided to CNBC by Moms First. Saujani said this reflects a national trend in which only 3% to 5% of eligible workers take any paid leave.
“If no one knows it exists, they won't be able to access it,” said Saujani, whose organization has created a website that uses artificial intelligence to help people determine their eligibility for paid family leave in New York. Saujani said Moms First is in the process of rolling out this tool in other states that offer paid leave to help residents of those states determine if they are eligible.
