Just like California and Washington, if you are planning to be one of the New York surrogates, you have the right to take paid time off work while you are unable to work due to pregnancy under New York State's maternity leave regulations. The state also provides new parents in New York with paid leave, so Intended Parents working in New York can enjoy paid baby bonding time.
The paid time off in New York includes:
Pregnancy Disability Leave which arises under New York’s Disability Benefits Law. It provides compensation for pregnant women when they are unable to work due to pregnancy; and
Parental Leave which arises under New York’s Paid Family Leave Law entitling both new mothers and fathers to part of their lost wages.
The New York's Short-term Disability Law
One of the medical conditions covered under this law is any pregnancy-related illnesses or complications. You're entitled to coverage only for the time when you're unable to work due to pregnancy or childbirth. If you're pregnant, you're entitled to disability for up to four weeks before your due date and up to six weeks after giving birth (eight weeks if you delivered by Caesarian section). If you need more Temporary Disability Insurance (TDI), you might have to submit additional medical documentation to support your claim. However, you might be automatically eligible for paid family leave once your TDI has ended. You are eligible for Short-term Disability payments in New York with the following criteria set by the law:
An individual who is working or has recently worked at least four consecutive weeks at a job that is considered to be owned by a "covered employer."
Individuals who change from one covered employer to another covered employer. As long as your employment was continuous, coverage for short-term disability starts on your first day of work.
A domestic or personal employee who works at least 40 hours per week for one employer.
Individuals who are not employed by a covered employer but elect for voluntary coverage.
A covered employer includes those that have one or more employees. However, excluded from the definition of a covered employer are government workers, religious leaders, those providing work in return for charity care, and high school students who work part-time or only during vacations.
Medical certification is needed to support your claim that you are unable to work due to your pregnancy or recovery from delivery.
To apply for Short-term Disability, you must submit a DB-450 form along with any additional documents to your employer or insurance carrier within thirty days of your inability to work due to a disability. If the insurance carrier or your employer decides that your claim is not covered, they are required to notify you within forty-five days. Nevertheless, this does not take away your right to a review by the New York Workers’ Compensation Board.
Parental Leave Under New York's Paid Family Leave Law
You may only claim parental leave once you have physically returned to your work and, thereafter, are no longer eligible for short-term disability. Under New York's Paid Family Leave Law, you have the right to take 12 weeks of paid, job-protected leave to bond with a new child or care for a family member with a serious health condition.
How much will you be paid under the law? During your paid family leave, you will receive 67% of your average weekly wage up to a cap of 67% of the current statewide average weekly wage which varies by year. For 2023, New York's average weekly wage is $1,688.19, which means the maximum weekly benefit you'll receive during your paid family leave is $1,131.08. Estimate your Paid Family Leave benefits here.
You may only be eligible for parental leave after 26 weeks of employment if you work 20 hours per week or more. Meanwhile, if you work fewer than 20 hours per week, you are eligible after 175 days of work.
There are 2 cases in which you can file for parental leave under the Paid Family Leave Law. If it is foreseeable, you must give your employer advance notice so they can plan for your absence. However, if the event was not foreseeable, you must notify your employer immediately. You must fill out the Request for Paid Family Leave (Form PFL-1) and submit it to your employer before or within thirty days after the start of your leave. The insurance carrier or your employer must pay or deny your request within eighteen calendar days of receiving the completed request. In the event that you disagree with your insurance carrier’s decision, you may request arbitration for a denial or any other Paid Family Leave claim-related dispute with the National Arbitration and Mediation forum.
Conclusion
It is crucial to remember that you cannot take Short-term Disability benefits and Parental Leave at the same time. This means if you have recovered from the temporary disability caused by your pregnancy and recovery from childbirth, only thereafter can you begin your Parental Leave. However, parental leave will not apply to surrogates as they will not be caring for the child after birth.
The possibility of paid leave is a important consideration in a surrogacy contract as lost wages are an uncertain financial component of a surrogacy journey. States like New York which provide paid leave for disabled working surrogates will effectively reduce the burden of lost wages on intended parents. In addition, intended parents in New York should take advantage of the paid family leave as baby bonding time.
If you are planning to be a surrogate or are soon becoming an intended parent, schedule an appointment to speak with one of our surrogacy lawyers, and we can discuss how to incorporate paid leave into lost wages provisions for your surrogacy journey.
This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.