By Paul F. Keneally, Esq. and Ryan T. Biesenbach, Esq.
Several new employment law changes were included in the recently passed 2024 New York State budget and signed into law by Governor Hochul. Three of the employment law provisions - paid lactation breaks, paid prenatal care, and the end of COVID-19 paid sick leave - bring notable obligations and some complexity for employers and human resources. While most commentators agree that supporting lactating women in the workplace and promoting prenatal care are positive initiatives, some are concerned that the impositions on employers have become too great. For similar reasons, and a sense that it is not necessary anymore, many believe COVID-19 paid sick leave should have already ended and it is unreasonable that it will not end until July 31, 2025.
Paid Lactation Breaks (NYS Labor Law Section 206-c, Subdivision 1)
Beginning on June 19, 2024, New York employees became entitled to thirty (30) minutes of paid break time for the expression of breast milk in the workplace. Crucially, there is nothing in the new law limiting how many thirty (30) minute lactation breaks may be taken; the employee need only have a reasonable need for each break. Prior to these amendments, Section 206-c only required New York employers to provide reasonable unpaid break time at least every three (3) hours, and to permit employees to use any existing paid break time or mealtime to express breast milk. If the employee reasonably needs more than thirty (30) minutes at a time, paid break time or mealtime may still be used. The right to paid lactation breaks lasts for up to three (3) years following childbirth. Unsurprisingly, the law also bans discrimination and/or retaliation against any employee taking paid lactation breaks. As with the prior requirements, the new amendments continue to require that employers provide a suitable, well-lit private room at the place of business nearby the employee’s work area with a door lock, a chair and flat surface (such as a table, desk, or counter), access to running water and, if the workplace has a refrigerator, the ability for the employee to store breast milk. Like before, notice of the law is required to be provided to employees at the time of hire, when they return to work following the birth of a child, and annually thereafter. Given that the effective date of these requirements has already passed, employers should update their policies immediately and provide the required notice to ensure compliance.
Paid Prenatal Care Leave (NYS Paid Sick/Safe Leave Law-Labor Law Section 196-b)
Beginning January 1, 2025, New York employers will be required to provide paid prenatal care leave of twenty (20) hours per year on top of any other paid leave offered voluntarily or as required by law. Employees will be able to use the leave in any fifty-two (52) week period. Prenatal care leave will include leave taken for health care services received by an employee 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 the pregnancy. It is expected that the leave will include time spent with health care providers for advice on attempting to get pregnant. Paid prenatal leave does not appear to be an accrued benefit and the text of the amendment suggests that it must be made immediately available to employees in its entirety at the time they are hired. The paid prenatal care leave must be taken in hourly increments and per the amendment, employees are to receive compensation for this leave at the employee’s regular rate of pay or the applicable minimum wage, whichever is greater. The statute does not restrict the number of times paid prenatal leave can be taken by a single employee over the course of their employment, other than to limit the use to twenty (20) hours in a fifty-two (52) week period. Although the language of the law mandates an employee be provided with this leave during “their pregnancy,” additional information and guidance has yet to be issued by the state and it is still uncertain whether this benefit will also be available to expecting fathers. The law does, however, have specific limits on employers questioning the use of this leave by requiring documentation, so employers will be advised to tread carefully. Unused paid prenatal care leave is not required to be paid out at termination of employment. Like with paid lactation breaks, employees taking paid prenatal care leave are protected from discrimination and retaliation. Even though there is still time before this law goes into effect, employers are nonetheless encouraged to revise their policies in advance.
COVID-19 Paid Sick Leave
As noted above, COVID-19 paid sick leave, first passed in 2020 at the pandemic’s outset, will continue to remain in effect until July 31, 2025. The amount of leave available to an employee, and whether it is paid or unpaid, continues to be determined by employee count and a business’ net annual income. Employers concerned about potential false claims of COVID-19 paid sick leave are reminded that for the second or third attempted use by an employee, the employer may require a doctor’s confirmation of COVID or a PCR test result. Also, the CDC current standards on return to normal activities may help employers get their employees back to work.
Employers should review and consider updating their policies and procedures to ensure compliance with the changes introduced by the budget, including revising your employee handbook to reflect updated requirements regarding paid lactation breaks and paid prenatal care leave and breastfeeding accommodations. Additionally, it is important to educate your managers and human resources professionals to ensure they understand the new requirements and the implications for your workplace.
As chair of the Underberg & Kessler’s Labor & Employment practice group and partner in the Litigation and Municipal Law practice groups, Paul F. Keneally represents a wide variety of organizations, businesses, and individuals. He provides advice regarding labor law compliance, wage & hour matters, non-compete/non-solicit agreements, sexual harassment, all categories of discrimination and retaliation, family and medical leave, paid family leave, and more. He can be reached at pkeneally@underbergkessler.com.
Ryan T. Biesenbach is an associate in Underberg & Kessler LLP’s Litigation and Labor & Employment practice groups. He focuses his practice on civil and commercial litigation and labor & employment law, including the development of employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and compliance with state and federal labor laws. Ryan can be reached at rbiesenbach@underbergkessler.com.
Reprinted with permission from Rochester Business Journal and available as a PDF file here.
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