As previously reported, all New York employers are required to provide up to 20 hours of paid leave for employees’ prenatal care during any 52-week period.
New York City’s Earned Safe and Sick Time Act (ESSTA) was recently amended to incorporate the state pre-natal leave requirement. Unlike the state statute, ESSTA requires employers to maintain a written prenatal leave policy; provide employees a written statement for each pay period when prenatal leave is used – on a pay stub or separately – of the amount used and available; post and provide a notice of rights; and, keep a record of the date and time prenatal leave is used, the amount paid during each pay period, and the balance remaining. Also, under ESSTA, Employees can be required to provide advance notice – no more than 7 days – when the need for prenatal leave is foreseeable or as soon as practicable when unforeseeable.
ESSTA was amended again. Effective February 22, 2026, NYC employers are required to provide 32 hours of unpaid leave – in addition to the paid leave (40 or 56 hours depending on the employer’s size) available under ESSTA. The 32 unpaid hours are available immediately upon hire, must be front-loaded at the start of each calendar year and are available for the reasons enumerated in ESSTA. Additionally, ESSTA expands eligible covered events by incorporating the leave benefit available to employees under the NYC Temporary Schedule Change Law which include:
- to provide care to a minor child or a person living in the caregiver’s household with a disability who relies on the caregiver for medical care or the needs of daily living; or
- to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party.
Additional circumstances covered by the amended leave provisions of ESSTA will include:
- closure of employees’ place of business or employees’ need to care for a child whose school or childcare provider has been closed due to a public disaster, including a fire, explosion, terrorist attack, or severe weather conditions that is declared a public emergency;
- public official directives to stay indoors or avoid travel during a public disaster which would prevent employees from reporting to work; and
- to seek legal and social services assistance or take other safety measures if the employee or a family member is a victim of workplace violence.
Unlike the paid sick and safe leave provisions of ESSTA, the additional 32 hours of unpaid leave are not carried over. However, an employer must provide paid leave before the unpaid leave unless the employee requests otherwise. Employers must report both paid and unpaid leave.
The minimum increment of sick/safe leave under ESSTA is 4 hours. For prenatal leave, the minimum increment of use is 1 hour.
The two days available to employees under the NYC Temporary Schedule Change Law will no longer be mandatory because they will be replaced by the ESSTA amendments. However, an employee can still request a schedule change for qualifying reasons subject to employer approval, which an employer must respond to, in writing, within 14 days.
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About the Author: Ralph A. Somma
Ralph A. Somma is an experienced employment lawyer from Long Island, New York who has been practicing labor & employment law exclusively for over 33 years.
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