Open Questions: Safeguarding Employee Privacy and New York State Prenatal Leave Law
7.21.2025
As of Jan. 1, New York State became the first state to offer paid time off for employees to receive prenatal care. While the paid prenatal leave law fills an important gap in New York’s legal framework, it may raise some concerns relating to employee privacy. This article discusses New York State’s paid prenatal leave, and the questions that remain open as New York employers offer this benefit for the first time.
Paid Prenatal Leave Scope and History
On April 22, 2024, New York State Gov. Kathy Hochul signed into law the requirement that private employers in New York provide paid time off for employees to attend pregnancy-related medical appointments. “No pregnant woman in New York should be forced to choose between a paycheck and a check-up – and that’s why I pushed to create the nation’s first paid prenatal leave policy,” announced Gov. Hochul.[1]
The paid prenatal leave law builds on a series of steps New York has taken to protect reproductive health care in recent years. Most notably, in December 2024, New York ratified the Equal Rights Amendment, which enshrined in the New York State Constitution the right to be free of discrimination based on reproductive health care and autonomy, pregnancy, and pregnancy outcomes.[2]
Gov. Hochul first introduced paid prenatal leave as an amendment to New York State’s sick leave law, New York Labor Law Section 196-b, during the state’s 2024-25 Executive Budget proposal.[3] Shortly before the law took effect on Jan. 1, the New York State Department of Labor released guidelines on paid prenatal leave for both employers and employees.[4] Both the new amendment to the law and the guidelines make clear: Paid prenatal leave’s coverage is broad.
Private sector employers, regardless of size or industry, must provide 20 hours of paid prenatal leave to all employees, including part-time employees. Nonprofit organizations are covered by the law, but federal, state or local government employees are not. Upon request, employers must allow employees to use this leave until all 20 hours have been used.[5]
Employers must offer paid prenatal leave in addition to the state’s required sick leave or any other available leave option that they voluntarily provide, such as vacation or holiday paid time off. Employers cannot require an employee to choose one type of leave over another or require an employee to exhaust one type of leave before using paid prenatal leave.[6]
Eligible employees are entitled to use the 20 available hours once in a 52-week period, which begins upon first use of prenatal leave. If an employee becomes pregnant more than once during this 52-week period, they may use any remaining hours of their 20-hour bank but may not exceed 20 hours. Employers may choose to offer greater than 20 hours but are not required to do so.[7]
Employees may use this benefit in hourly increments for health care services related to pregnancy, such as physical examinations, medical procedures, monitoring and testing, and discussions with health care providers related to pregnancy. The guidelines specify that the benefit is not available to spouses, partners, or other support people, but only to those who are directly receiving prenatal care. The law also applies to all fertility treatment or care appointments. End-of-pregnancy care appointments are covered, but postnatal or postpartum appointments are not.[8]
Unlike the New York State sick leave law, employers may not choose to offer this benefit on an accrual basis (where employees may earn an hour of sick leave for every 30 hours worked), but rather employers must make 20 hours of paid prenatal leave available to employees at the start of their calendar year. Further, there are no minimum work requirements. New employees are eligible for paid prenatal leave at the start of their employment. Employees must be paid at their regular rate of pay or the applicable minimum wage established by the law, whichever is greater.[9]
Employers are prohibited from retaliating against employees for using paid prenatal leave. The guidelines provide the following examples as unlawful retaliation: reducing the number of hours of sick leave, vacation leave, or other leave available to employees because they used paid prenatal leave, changing an employee’s work location or hours after they requested to use paid prenatal leave, and firing or demoting an employee after they request to use paid prenatal leave.[10]
The broad scope of New York State paid prenatal leave is intended to ensure “workers can receive the health care needed to address all pregnancy-related care to create healthy outcomes without jeopardizing their employment or finances.”[11]
Paid Prenatal Leave and Policy Goals Furthered
According to the Office of Disease Prevention and Health Promotion of the U.S. Department of Health and Human Services, prenatal care is necessary to prevent and address health concerns for mothers and infants and is most effective when accessed early and continuously throughout pregnancy.[12]
In a 2024 survey of 1,300 women, 65% of respondents reported inflexible work schedules and the inability to take off for appointments as a major challenge they faced while pregnant or while receiving fertility treatments.[13] Studies show that cost is the primary reason why women are unable to receive fertility care.[14]
Employees in New York can now take time off to go to pregnancy-related health care appointments with greater scheduling flexibility and without losing pay. Gov. Hochul’s announcement emphasizes that this law is designed to support low-wage workers who are living paycheck to paycheck and may face greater financial hardship if they had to forgo income to receive prenatal care. New York State paid prenatal leave will, therefore, improve access to reproductive health care for all covered employees.
Employee Privacy Concerns and Relevant Legal Protections
Under the guidelines, employers are explicitly prohibited from asking for documentation of an employee’s need to use paid prenatal leave or inquiring about confidential pregnancy-related health conditions. However, because of the law’s specific purpose – for employees attending pregnancy-related medical appointments – an employee requesting to use paid prenatal leave effectively discloses to their employer that they have made a decision related to their reproductive health. This inevitable disclosure may put employees at an increased risk of being subjected to workplace discrimination. As a result, it is crucial that employers maintain the confidentiality of an employee’s request to use paid prenatal leave to ensure that employees are not discriminated against or subject to any adverse employment actions based on their use of this leave.
There are several laws aimed at protecting employee health care privacy and preventing discrimination based on an employee’s reproductive health decisions or pregnancy status that an employer must be aware of as they implement their paid prenatal leave policies.
At the federal level, the Equal Employment Opportunity Commission enforces three federal laws related to pregnancy discrimination. First, Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, prohibits discrimination based on current, past or potential pregnancy, medical conditions related to pregnancy or childbirth, or having or choosing not to have an abortion.[15] Second, the Americans with Disabilities Act prohibits disability discrimination, including pregnancy-related conditions. The ADA requires employers to maintain an employee’s disability-related medical information in a confidential medical file kept separate from the employee’s personnel file. This medical information may only be disclosed in limited situations related to their employment.[16]
Third, in June 2024, the EEOC issued a final rule on the Pregnancy Workers Fairness Act, requiring employers to provide a reasonable accommodation to a “qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an ‘undue hardship.’”[17] The future of this law is uncertain as a result of ongoing legal challenges, leadership changes at the EEOC, and shifting priorities of the Trump administration.[18]
Under the New York State Human Rights Law, employers are prohibited from taking any adverse action against an employee because the employee is pregnant, intends to become pregnant, recently was pregnant, or recently gave birth.[19] This law also affords employees the right to have medical information about pregnancy-related conditions kept confidential.[20]
In 2019, New York State enacted New York Labor Law Section 203-e, which prohibits employers from discriminating against or taking any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment based on the employee’s or their dependent’s reproductive health choices.[21] Following a lengthy legal battle in CompassCare v. Hochul,[22] the Second Circuit held that, as of Jan. 2, employers in New York must include a notice of the protections established by New York Labor Law Section 203-e in their employee handbook or similar compilation of policies.
Employers in the legal profession are further guided by the ethical obligations to refrain from discrimination. Rule 8.4 of the New York Rules of Professional Conduct prohibits lawyers from engaging in conduct in the practice of law that they know, or should know, constitutes unlawful discrimination or harassment. Conduct in the practice of law includes operating or managing a law firm or interacting with colleagues.[23] Therefore, lawyers who operate or manage law firms in New York must ensure they make paid prenatal leave available to their staff in a nondiscriminatory way to comply with these legal and ethical obligations.
Pregnancy-Related Discrimination in the Workplace
While the above-mentioned legal frameworks exist to protect confidentiality of employee health information and prevent discrimination, the unfortunate reality is that workplace discrimination remains a significant problem in the U.S. Pregnancy-related discrimination can take on many forms, such as unwanted transfer or reduction of work schedules, failing to promote, demoting or firing pregnant workers after learning they are pregnant, or any other adverse action against an employee based on their pregnancy status.[24]
In 2022, the Bipartisan Policy Center published a study finding that, of 2,200 adults, 20% have personally experienced pregnancy discrimination in the workplace, 23% have thought about leaving a job due to a lack of reasonable accommodation or fear of discrimination from an employer during pregnancy, and 21% have been scared to tell their employers about their pregnancies due to fear of discrimination or retaliation.[25]
Based on this study, it is likely that employees may be reluctant to take paid prenatal leave, either out of fear of discrimination and retaliation, or for any other personal reason of not wanting to share their pregnancy status. If employees are hesitant to request paid prenatal leave, the intended benefit of the law will be undermined.
Issues Employers Might Consider When Implementing Paid Prenatal Leave Policies
Employers will be understandably concerned about protecting employee privacy and reducing the potentially heightened risk of discrimination. The guidelines state that employees should request paid prenatal leave using the same means they currently use to request other forms of leave, though they do not discuss what type of system an employer should maintain.
In order to ensure the law helps those it is intended to, employers can inform their workforce about the availability of paid prenatal leave and articulate what process employees should use to request the leave. Employers might also assure employees that their request will not be shared with anyone other than the personnel necessary to process the request.
Assigning a designated employee representative to answer any questions relating to an employee’s use of paid prenatal leave and reminding employees that they need not share any details or medical information as a condition of using paid prenatal leave are additional actions employers might take. Whether a human resources representative or other administrative professional, the designated personnel would need to be well trained in their employer’s legal obligations for handling medical information and on compliance with the various anti-discrimination laws to prevent adverse employment actions.
Looking Ahead
As the first of its kind, New York State paid prenatal leave may influence other state or city legislatures to enact similar laws. New York State’s paid prenatal leave law has already drawn attention from the New York City Legislature. In February, the New York City Department of Consumer and Worker Protection proposed amendments to the city’s sick leave law, the New York City Earned Safe and Sick Time Act, to incorporate the state’s paid prenatal leave law.[26] Following a comment period and public hearing, the city adopted the proposed amendment in June. The amended law, incorporating paid prenatal leave, went into effect on July 2.
As 2025 progresses, the employment law community will monitor the enforcement of the law and any further guidance from the New York State Department of Labor addressing the issues that remain open.
Charlotte A. Moriarty is an employment associate at Book Law and a 2024 graduate of Fordham University School of Law.
This article appears in a forthcoming issue of the Labor and Employment Law Journal, a publication of NYSBA’s Labor and Employment Law Section. For more information, please visit nysba.org/labor.
Endnotes:
[1] Gov. Kathy Hochul, Press Release: Money in Your Pockets: Ahead of January 1, 2025 Start Date for First-in-the-Nation Paid Prenatal Leave, Governor Hochul Announces Campaign To Mobilize Eligible New Yorkers, New York State (Dec. 2, 2024), https://www.governor.ny.gov/news/money-your-pockets-ahead-january-1-2025-start-date-first-nation-paid-prenatal-leave-governor.
[2] N.Y. Const. art. 1, § 11.
[3] N.Y. Lab. L. § 196-b.
[4] New York State Paid Prenatal Leave, Frequently Asked Questions (“NYDOL Guidelines”) (Dec. 2, 2024), https://www.ny.gov/new-york-state-paid-prenatal-leave/frequently-asked-questions.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Gov. Kathy Hochul, Press Release: New Year, New Laws: Governor Hochul Announces New Policies Taking Effect in 2025 To Put Money Back Into the Pockets of New Yorkers, New York State (Jan. 3, 2025), https://www.governor.ny.gov/news/new-year-new-laws-governor-hochul-announces-new-policies-taking-effect-2025-put-money-back.
[12] Office of Disease Prevention and Health Promotions, Increase the Proportion of Pregnant Women Who Receive Early and Adequate Prenatal Care, Healthy People 2030, Office of Disease Prevention and Health Promotion, U.S. Dept. of Health and Human Services, https://odphp.health.gov/healthypeople/objectives-and-data/browse-objectives/pregnancy-and-childbirth/increase-proportion-pregnant-women-who-receive-early-and-adequate-prenatal-care-mich-08 (last visited April 1, 2025).
[13] Maternal Health in the Workplace, Carrot Fertility (April 30, 2024), https://www.get-carrot.com/blog/maternal-health-in-the-workplace-a-report-from-carrot-fertility.
[14] Usha Ranji, Karen Diep, Brittni Frederiksen, Ivette Gomez, and Alina Salganicoff, Access to Fertility Care: Findings from the 2024 KFF Women’s Health Survey, KFF (Oct. 21, 2024), https://www.kff.org/womens-health-policy/issue-brief/access-to-fertility-care-findings-from-the-2024-kff-womens-health-survey/.
[15] 42 U.S.C. §§ 2000e et seq.
[16] 42 U.S.C. §§ 1201 et seq.
[17] 42 U.S.C. §§ 2000 et seq.; What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
[18] The 8th Circuit recently held that 17 states have standing to challenge the PWFA, Tennessee v. EEOC, No. 24-2249 (8th Cir. 2025); The State of the EEOC: Frequently Asked Questions, https://www.eeoc.gov/wysk/state-eeoc-frequently-asked-questions (last visited April 1, 2025).
[19] N.Y. Exec. L., art. 15.
[20] Id.
[21] N.Y. Lab. L. § 203-e.
[22] 25 F.4th 49 (2d Cir. 2025).
[23] 22 N.Y.C.R.R. Part 1200, Rule 8.4(g) (2021).
[24] Guidance on Pregnancy Discrimination and Reasonable Accommodation of Pregnancy-Related Conditions for Employers in New York State, New York State Division of Human Rights, https://dhr.ny.gov/system/files/documents/2022/08/nysdhr-guidance-pregnancy-discrimination.pdf (last visited April 1, 2025).
[25] Pregnancy Discrimination in the Workplace, Bipartisan Policy Center (Feb. 2022), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2022/02/BPC_-Pregnancy-Discrimination-In-the-Workplace_Analysis_Updated-1.pdf.
[26] NYC Paid Safe and Sick Leave Law, https://www.nyc.gov/site/dca/about/paid-sick-leave-law.page, (last accessed March 29, 2025).
