Legally speaking, maternity or parental leave has two parts: the time you take off while you are unable to work due to pregnancy and the physical experience of childbirth, and the time you take off to spend with your new child. For the first part, pregnancy disability leave, New York is one of a small handful of states that gives employees the right to time off that is paid through insurance. For the second part, New Yorkers benefit from two state laws that give them the right to be paid part of their usual wages when they take time off work for pregnancy and for parental leave.
In addition, the federal Family Medical Leave Act (FMLA) gives employees in all states the right to take unpaid leave for these reasons. The federal Pregnancy Discrimination Act (PDA) also prohibits your employer from discriminating against you because of your pregnancy, which may give you the right to take time off work in some cases.
Like employees in other states, New York employees may have the right to take time off work while they are unable to work due to pregnancy under the FMLA and/or the PDA. Unlike employees in other states, New York employees also have the right to get paid during this time off.
New York law requires employers to provide short-term disability coverage to their employees. This insurance provides partial wage replacement (50% of the employee's wages, up to a weekly cap) to employees who are temporarily unable to work for any reason, including pregnancy. (The insurance doesn't cover work-related injuries or illnesses, which are compensable under workers' compensation instead.)
An employee is entitled to collect these short-term disability benefits only while she is actually unable to work due to pregnancy or childbirth. An employee who is unable to work more than four to six weeks prior to giving birth or continues to be unable to work more than four to six weeks after giving birth may have to submit additional medical documentation to support her claim. The maximum period of disability under the law is 26 weeks.
For more information on New York's pregnancy disability leave rules, see New York Short-Term Disability and Pregnancy.
The federal Family Medical Leave Act gives eligible employees the right to take up to 12 weeks off work in a one-year period for pregnancy and parenting leave (among other things). If you qualify, you can use the FMLA to take time off when you are unable to work because of your pregnancy and childbirth. You can also take FMLA leave for prenatal care, including routine check-ups and doctor visits. (Learn more about the FMLA, including eligibility requirements, in our article on FMLA leave for pregnancy and disability.)
The federal Pregnancy Discrimination Act does not require employers to give pregnant employees time off work, but it does require employers to treat employees who are unable to work due to pregnancy just as it treats other employees who are temporarily disabled for other reasons. For example, if your company lets employees take time off for other temporary disabilities, like broken bones or heart attacks, then it must allow pregnant employees to take the same time off when they are unable to work.
In addition to being able to take three months of unpaid parenting leave under the FMLA, New York has a new paid family leave law that offers two to three months of paid leave.
Starting in 2018, you also have the right to take time off under New York’s paid family leave law. This new law gives you the right to job-protected leave for eight weeks (in 2018), ten weeks (in 2019 and 2020), or 12 weeks (in 2021). The benefit amount will be increased over time, from 50% of your average weekly wage in 2018 to 67% percent of your average weekly wage in 2021.
You are eligible for paid family leave after 26 weeks of employment if you work at least 20 hours per week, or, if you work fewer than 20 hours per week, after you have worked 175 days. You can use this leave for parenting, to care for a family member with a serious health condition, or to handle certain matters arising from a family member’s active duty deployment in the military. (If you are unable to work due to pregnancy, or due to your own serious health condition, you would use the state’s temporary disability benefits program to seek compensation. (Learn more about NY’s leave law at its Paid Family Leave page.)
The FMLA also gives employees the right to take unpaid time off to bond with a new child, whether biological, adopted, or foster. This is part of your total 12-week FMLA annual leave entitlement. So, if you use two weeks of FMLA leave during your pregnancy, you will have ten weeks left to use for parenting leave.
When your leave is over, you have the right, under both the FMLA and New York’s paid family leave law, to be reinstated to your job. During your time off, you have the right to continue your health insurance; you must, however, continue to pay any share of the premium you would have had to pay if you were working.