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).