Hunton Employment & Labor Perspectives

Although there is no federally-mandated paid leave for U.S. employees in the private sector, states have increasingly required that employers provide various forms of paid leave to their employees.  That trend continues as several states began imposing requirements upon employers to permit employees to accrue and use paid sick leave for certain medical situations for employees or members of employees’ immediate families.  Paid sick leave for employees in the private sector is now required by 17 states, the District of Columbia, and various municipalities around the country.

While there is little doubt that additional states and cities will follow suit and require employers to provide paid sick leave to employees, a trend requiring other forms of paid leave has also emerged.  One of the most prominent emerging forms of state-mandated paid leave is parental leave.  In navigating the various forms of parental leave (e.g., maternity leave, paternity leave, leave for bonding, leave for pregnancy-related medical conditions), employers have struggled to understand what the EEOC, other agencies, and the courts consider sex discrimination under Title VII (including the Pregnancy Discrimination Act of 1978) and disability discrimination under the Americans with Disabilities Act as those laws relate to parental leave.  Employers have also struggled to administer parental leave without running afoul of the federal Pregnant Workers Fairness Act and the Family and Medical Leave Act.

Now, pushing the trend of providing paid leave for various health-related reasons, including pregnancy, even further, New York state has mandated 20 hours of prenatal leave (in addition to any required paid sick leave) for mothers giving birth.  In explaining the reason for the mandate, New York Governor Hochul said, “No one should ever have to fear seeking care because of the costs it will impose or time missed from work.”  “From supporting pregnant moms to reducing insulin costs, we are taking action to ensure New Yorkers can access the care they need.”  The move is touted as an effort to improve the long- and short-term health and well-being of mothers and infants while also offering job protection for birthing mothers who require doctor appointments before childbirth and other prenatal treatment. 

Although New York is the first state to require paid prenatal leave, it will likely not be the last.  If the increasing state trend of providing paid sick leave is any indicator of states’ inclination to begin providing more paid, medically-related leave to employees, other states are likely to start requiring paid prenatal leave, and employers should continue to monitor whether states in which they have employees impose any such requirements.