Neither federal law nor New York law requires an employer
to offer, to either its female employees or its male employees, paid
leave because of the birth of a son or daughter of the employee and in order to
care for such son or daughter.
However, most workers in New York State are eligible for
temporary cash benefits, known as short-term disability benefits ("STD
benefits"), when they are disabled by injury or sickness that is not
work-related. Specifically, most workers in New York may receive up to 26
weeks (during 52 consecutive weeks) of short-term disability benefits at fifty
percent of the employee's average weekly wage, but no more than the maximum benefit allowed.
N.Y. Workers' Comp. Law §§ 204, 205(1). Currently, the maximum benefit is
$170 per week. Id. § 204.
For purposes of receiving short-term disability benefits
in New York, " 'Disability' also includes disability caused by or in connection
with a pregnancy. " N.Y. Workers' Comp. Law § 201(9)(B). As a a
result, pregnant employees in New York may receive up to 26 weeks (during
52 consecutive weeks) of STD benefits at 50% percent of the employee's average
weekly wage, up to the maximum benefit is $170 per week.
In New York, short-term disability benefits (including
STD benefits for a disability caused by or in connection with a pregnancy) are
paid in one of two ways: wholly by the employer, or jointly by the employer and
the employee. Employers may deduct a maximum of 60 cents per week from
employees to pay for this insurance. See N.Y. Workers' Comp. Law §
204.
Further, it is unlawful in New York for an employer or an
employer's duly authorized agent to discharge or in any other manner discriminate against an
employee because the employee has claimed or attempted to claim short-term
disability benefits, including STD benefits for a disability caused by or in
connection with a pregnancy. N.Y. Workers' Comp. Law §§ 120, 201(9)(B).
Although neither federal law nor State law requires an
employer in New York to offer, to its employees, paid child care
leave, an employer which voluntarily elects to offer, to its female
employees, paid leave because of the birth of a son or daughter of the employee
and in order to care for such son or daughter, and which does not require, for
such paid leave, a showing that the female employee is disabled by the
pregnancy, must offer the paid child care leave to its male employees in the
same circumstances.
For an employer in New York City to treat female
employees more favorably than male employees with regard to paid child care
leave which is not contingent on a showing of pregnancy-related disability
likely violates Title VII of the Civil Rights Act of 1964, as amended
("Title VII"), the New York State Human Rights Law (the "NYSHRL"), and the New York City Human Rights Law (the "NYCHRL"). See
U.S. Equal Emp. Opportunity Comm'n, Enforcement Guidance: Unlawful Disparate
Treatment of Workers with Caregiving Responsibilities, EEOC Notice No.
915.002 (2007) ("employers may not treat either sex more favorably with respect
to . . . leave for childcare purposes"); Danielson v. Board of Higher Educ.,
358 F. Supp. 22, 27 - 29 (S.D.N.Y. 1972); People ex rel. Watts v. Watts,
77 Misc. 2d 178, 183 - 184, 350 N.Y.S.2d 285 (N.Y. Family Ct. 1973) .
Take-Aways for Employers
To avoid a potential violation of Title VII and the
NYSHRL (and, within New York City, the NYCHRL), employers in New York should
explicitly distinguish between pregnancy-related, paid leave and other forms of
paid leave. See U.S. Equal Emp. Opportunity Comm'n, Enforcement
Guidance: Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities, EEOC Notice No. 915.002.
Employers in New York should make sure that any paid
leave specifically offered to women alone is limited to the period for which
women are incapacitated by pregnancy and childbirth. Id.; see
Schafer v. Board of Public Educ. of School Dist. of Pittsburgh, 903 F.2d
243, 250 (3d Cir. 1990).
If your company needs assistance or guidance on a labor or employment law issue and your company is located
in the New York City area, call Attorney David S. Rich at (212) 209-3972.
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