Paid leave for prenatal care is expected to become a national women's health initiative. New York has now become the first state to provide a separate entitlement to paid prenatal leave.
In April, New York Governor Kathy Hochul signed an amendment to the New York Labor Code to require employers to provide up to 20 hours of paid leave during a 52-week period to pregnant employees to attend prenatal medical appointments and procedures. This provision takes effect on January 1, 2025.
“I think other states and other governors who share a similar set of values in prioritizing women's health will hopefully follow suit,” said Reshma Saujani, founder and CEO of Moms First, a campaign for the nonprofit 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 because of her pregnancy. The law gives covered employees up to 12 work weeks of leave during a 12-month period. However, while their jobs are protected during this time, the leave is unpaid.
Washington, D.C. recently enacted a law similar to what New York 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 a child is born.
These laws are based on medical research showing that prenatal health care tends to lead to better health outcomes for mothers and their babies.
Harris M. said: “The concept is that working mothers should not have to dip into their sick leave bank and draw from that bank for health care associated with having a child,” said Mufson, a partner at law firm Gibson, Dunn & Crutcher. Member of the firm's Labor and Employment practice. “There is a view that they should have a separate bank for this condition – that is appropriate and appropriately supportive for working mothers.”
There is no precedent in federal labor law
Although the FMLA gives eligible employees the right to take up to 12 weeks of unpaid leave annually, there is no federal law that generally requires private sector employers to provide paid leave to employees who need time off for family needs And medical. Likewise, there is no federal law covering paid leave for prenatal care.
Sojani said paid leave is not a partisan issue, but it was not necessarily at the forefront of lawmakers' concerns. “Federally, it was never passed because I think it was never prioritized.”
At the state level, more than a dozen states and at least one local jurisdiction have passed laws requiring private sector 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 has included new prenatal protections in its paid sick leave laws. At least 18 states, plus Washington, D.C. and the Commonwealth of Puerto Rico, have passed state-level paid sick leave laws, according to Westlaw. Three of these state laws — Illinois, Maine, and Nevada — allow paid leave for any reason, not just sick leave.
The United States is likely to follow New York's example
Kelly M said: Cardin, the Ogletree shareholder, said the states most likely to pass laws requiring paid leave for prenatal care are those that tend to provide greater protections for employees, such as California, Colorado, Massachusetts, Washington, Illinois, New Jersey and Connecticut. Dickens who focuses on labor law. “I think it's something that could spread,” she said.
The concept of requiring prenatal benefits could be particularly compelling given the federal Pregnant Workers Fairness Act, which President Biden signed into law in December 2022 and which took effect on June 27, 2023. American Jobs announced its final regulations implementing the law, which will take effect on June 18.
In general, the PWFA requires employers to provide employees with “reasonable accommodations” for known limitations of pregnancy, childbirth, or related medical conditions, unless doing so would cause an undue hardship. The law does not replace laws that are more protective 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 general employment law, states — especially those that are more progressive — would likely pursue additional protections, Cardin said. It also follows a general trend of some states trying to level the playing field among workers when it comes to employee benefits.
Few workers take advantage of paid leave programs
Of course, the matter is not limited to merely passing laws; Sojani said it was important to make sure women knew they existed.
Although states like New York have a widely praised paid family leave program, use of the program remains low, at just 2% of eligible workers, according to data provided to CNBC by Moms First. This reflects a national trend where only 3% to 5% of eligible workers take any paid leave, Sojani said.
“If no one knows it exists, they won't be able to access it,” said Sogani, whose organization created a website that uses artificial intelligence to help people determine their eligibility for paid family leave in New York. Moms First is rolling out this tool to other states that offer paid leave to help residents of those states figure out whether they qualify, Sojani said.
