Paid leave for prenatal care should become a national women's health initiative. This makes New York the first state to require an independent right to paid pregnancy leave.
In April, New York Governor Kathy Hochul signed a change to New York labor law that requires employers to provide pregnant employees with up to 20 hours of paid leave over a 52-week period to attend prenatal medical appointments and procedures can. The provision comes into force on January 1, 2025.
“I think other states and other governors who hold similar values in prioritizing women's health will hopefully follow suit,” said Reshma Saujani, founder and executive director of Moms First, a campaign run by 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 grants insured employees the right to up to 12 working weeks of vacation in a 12-month period. During this time, your job remains protected, but the vacation is unpaid.
Washington DC has passed a similar law to New York recently, allowing up to two weeks of paid leave for pregnancy-related medical care. The D.C. law also provides an additional 12 weeks of paid leave after the birth of a baby.
These laws are based on medical research showing that prenatal health care tends to lead to better health outcomes for mothers and their babies.
“The concept is that working mothers should not rely on their health insurance for health care related to the birth of a child,” said Harris M. Mufson, a partner at the law firm Gibson, Dunn & Crutcher and a member of the Labor and employment practices of the firm. “The view is that there should be a dedicated bank for this condition – that is appropriate and provides appropriate support for working mothers.”
There is no federal employment law precedent
Although FMLA entitles eligible employees to take up to 12 weeks of unpaid leave per year, no federal law generally requires private employers to provide paid leave to employees who need time off for family and medical purposes. Likewise, there is no federal law that regulates paid time off for prenatal care.
Paid leave isn't a partisan issue, but it hasn't necessarily been a top priority for lawmakers, Saujani said. “It was never passed at the federal level because, in my opinion, it was never prioritized.”
At the national level, more than a dozen states and at least one local jurisdiction have passed laws requiring private 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.
Since January, about 14 states — including California, Colorado, Connecticut and Delaware, as well as Washington DC and the city and county of San Francisco — have implemented paid family and medical leave programs.
New York, in turn, has integrated the new prenatal protections into its paid sick leave laws. According to Westlaw, at least 18 states, as well as Washington DC and the Commonwealth of Puerto Rico, have enacted nationwide paid sick leave laws. Three of these state laws – Illinois, Maine and Nevada – allow the use of paid leave for any reason, not just illness.
States are more likely to follow New York's lead
States most likely to pass laws requiring paid leave for prenatal care are those that tend to offer greater worker protections, such as California, Colorado, Massachusetts, Washington, Illinois, New Jersey and Connecticut, said Kelly M. Cardin, shareholder of Ogletree Deakins, who focuses on employment law. “I think it’s something that could spread,” she said.
The concept of requiring paid prenatal services may be particularly compelling in light of the federal Pregnant Workers Fairness Act, which was signed by President Biden in December 2022 and went into effect on June 27, 2023. In April, the U.S. Equal Employment Opportunity Commission released its final rule implementing the law, which takes effect June 18.
In general, the PWFA requires employers to provide their employees with “reasonable accommodations” for the known limitations of pregnancy, childbirth, or related medical conditions, unless doing so poses an undue hardship. The law does not replace laws that provide more protection offer the employee in this regard. More than 30 states and cities have laws requiring employers to provide accommodations for pregnant employees.
Given the federal government's focus on pregnant workers under the PWFA, it's likely that states — particularly more progressive ones — will adopt additional protections, Cardin said. It also follows a general trend of some states trying to level the playing field for workers when it comes to employee benefits.
Few workers take advantage of paid leave programs
Of course, it's not just about passing laws; It's important to make sure women know they exist, Saujani said.
Although a state like New York has a widely praised paid family leave program, utilization of the program remains low, at just 2% of eligible workers. according to information provided to CNBC by Moms First. Saujani said this reflects a nationwide trend with only 3% to 5% of eligible workers taking paid leave.
“If no one knows it exists, they won’t be able to access it,” said Saujani, whose organization created a website that uses AI to help people determine their eligibility for paid family leave in New York. Saujani said Moms First is in the process of rolling out this tool to other states that offer paid leave to help residents of those states find out if they are eligible.
