Understanding the leave programs available that cover pregnant employees in New York
August 2022
New York has had a paid family leave law since 2018. Initially granting 8 weeks of paid family leave to employees in the state to bond with a newly born, adopted or fostered child, to care for a sick child or parent, or where a military spouse has been deployed, the law now (as of 2022) provides 12 weeks of leave, and (starting in 2023) includes care for seriously ill siblings.
This is a terrific program, but where it still causes confusion is how it relates to pregnant employees. Depending on their circumstances, pregnant employees can avail of additional periods of leave:
Disability Leave
Pregnancy can be a form of disability under New York’s workers compensation law, and an employee can request disability leave provided they have a letter from their medical provider certifying that their leave is medically necessary. The employee cannot be terminated during leave, or for requesting leave, and must be permitted to return to their former position, or a similar position upon their return.
Who pays – the employer’s disability insurance carrier
What’s the entitlement – 50% of the employee’s average weekly wage (calculated by looking back 8 weeks) up to a maximum of $170 per week.
How much leave can be taken - An employee is entitled to up to 10 weeks total – 4 weeks before their due date, and 6 weeks after (8 weeks if they have given birth by Caesarian section).
Can it overlap with other periods of leave? No.
How does a worker request it? – The employee fills in the required form and hands it to their employer.
Is there a minimum number of days a worker must be employed to be eligible? Yes. A worker must have been employed by their present employer for at least 30 days to be eligible. If employed by less than this, they can claim from a prior employer’s disability insurance carrier in certain circumstances.
2. Paid Family Leave
New York’s Paid Family Leave program permits new mothers to take up to 12 weeks of paid family leave each year, and bonding with a newly born child is one of the permitted reasons. The employee cannot be terminated during leave, or for requesting leave, and must be permitted to return to their former position, or a similar position upon their return.
Who pays – the employer’s insurance carrier
What’s the entitlement – 67% of the employee’s average weekly wage (calculated by looking back 8 weeks) up to a maximum of $1,068.36.
How much leave can be taken - An employee is entitled to up to 12 weeks total. In the context of new parents, this applies exclusively to the period after birth. Leave can be taken in a single chunk, or can be taken intermittently though increments must be at least one day.
Can it overlap with other periods of leave? No, meaning disability leave and paid family leave cannot run concurrently. There are instances where they can be taken consecutively. Overall though, an employee’s combined paid family leave and Disability leave cannot exceed 26 weeks.
How does a worker request it? – The employee fills in the required form and hands it to their employer.
Is there a minimum number of days a worker must be employed to be eligible? Yes. A worker must have been employed by their present employer for at least 6 months to be eligible. If employed by less than this, they can claim from a prior employer’s disability insurance carrier in certain circumstances.
3. Employer-specific programs
Many employers have their own maternity/paternity/parental leave policies. It is up to an employer to determine how their own policy interacts with the Disability and Paid Family Leave.
Who pays – the employer
What’s the entitlement – typically the employee is paid 100% of their salary for the stated period
How much leave can be taken – This depends on the employer. 3 months in the U.S. is typical, though some employers give longer.
Can it overlap with other periods of leave? This is for the employer to determine but the answer generally is no, and employers are free to require that an employee take Paid Family Leave and the leave under the employer’s own policy concurrently, meaning an employee would not entitled to both payment from their employer and paid family or disability leave. Moreover, an employer could request that the employee claim Paid Family Leave and only pay the employee the difference between their New York Paid Family Leave benefit and their standard weekly salary.
How does a worker request it? – An employer is free to determine the mechanism.
Is there a minimum number of days a worker must be employed to be eligible? Employers are free to require that employers have worked a particular number of days (or years) before they’re eligible.
The post is available for informational purposes only and is not considered legal advice on any subject matter. By viewing this post the reader understands there is no attorney-client relationship between the reader and the post publisher. The post should not be used as a substitute for legal advice from a licensed professional attorney, and readers are urged to consult their own legal counsel on any specific legal questions concerning a specific situation.
