Employer Obligations Under the New NY State Paid Family Leave Law

November 12, 2017 Andrea R. Bernstein

New York State Paid Family Leave Law Effective January 1, 2018

Effective January 1, 2018, New York State’s Paid Family Leave (“PFL”) program will go into effect.  Insurance coverage for PFL benefits generally will be added to the disability policy that New York State requires all employers to carry. Employers may deduct the premium cost for the PFL policy from employees through a payroll deduction, or choose to cover the cost themselves. Each company should contact its disability policy broker or insurer to secure the legally required PFL coverage, and, where the employees will be funding the policy via payroll deduction, work with its payroll provider to provide for the collection of such deductions.

Written Guidance to Employees Required. The law requires all employers to have a written PFL policy.  A company that maintains an employee handbook with guidance for employees concerning employee benefits or leave rights must include information concerning leave and employee obligations under the PFL law in the employee handbook. A company that does not have an employee handbook, must provide written guidance to its employees concerning the employee’s rights and obligations under the PFL law, including information on how to file a PFL claim.

Additionally, all covered employers must display a printed notice concerning PFL in plain view where all employees and applicants can readily see it in a form that will be prescribed by the Workers’ Compensation Board Chair.

Employee EligibilityEmployees who work 20 or more hours per week become eligible for PFL after 26 consecutive work weeks.  Employees who work fewer than 20 hours per week become eligible for PFL after working 175 days.

An employee who will not qualify for the minimum amount of time required for eligibility (e.g., an employee who is scheduled to work less than 20 hours per week and who will not work 175 days in a 52 consecutive week period) must be informed of his or her right to waive PFL coverage so that the company will refrain from making PFL payroll deductions from the employee’s salary. A Waiver Form and other pertinent PFL forms are available here, a ny.gov site that will be updated as additional forms are released.

Permitted Reasons to Take PFL. An employee may use PFL:

  • to participate in providing care, including physical or psychological care, for an employee’s family member who has a serious health condition; or
  • to bond with the employee’s child during the first twelve months after the child’s birth, or the first twelve months after the placement of the child for adoption or foster care with the employee; or
  • because of any “qualifying exigency,” as interpreted under the Family and Medical Leave Act (FMLA), arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.

****Note: In contrast to the FMLA, the PFL law does not permit an employee to take leave to address the employee’s own serious health condition.

Employee Notice Requirements. An employee must provide the employer with at least 30 days advanced notice before leave if the reason for leave is foreseeable (e.g., an expected birth or a planned medical treatment for a family member).  If 30 days’ notice is not practicable, notice must be given as soon as practicable, meaning as soon as both possible and practical, taking into account all of the facts and circumstances of the individual case.  An employee must provide the employer with notice sufficient to make the employer aware of the qualifying event (including the type of family leave – e.g., leave for birth), as well as the anticipated timing and duration of the leave.

Additionally, an employee making a claim for benefits must complete a Request for Paid Family Leave or give notice of a claim in another format designated by the carrier.  The employee may also be required to provide additional documentation, as permitted by law, supporting the employee’s request for leave (e.g., medical certification of the serious health condition of a family member or activity duty orders of a military member).

PFL Benefits. The maximum benefit and length of eligibility under the New York PFL is designed to phase in over four years, starting January 1, 2018, as follows:

Year Weeks Available Max % of Employee Average Weekly Wage Cap % of State Average Weekly Wage
2018 8 50% 50%
2019 10 55% 55%
2020 10 60% 60%
2021 12 67% 67%

 

As per the above chart, in 2018, an employee who makes $1,000 a week would receive a benefit of $500 each week (50% of $1,000) during PFL. An employee who makes $2,000 a week would receive a benefit of only $652.96, however, because the maximum benefit for any employee is capped at one-half of New York State’s Average Weekly Wage (NYSAWW) —currently $1,305.92. Half of that amount is the maximum $652.96 weekly benefit.  The NYSAWW is set every year after a comprehensive analysis by the New York State Department of Labor. Benefits may be payable to employees for PFL taken intermittently, or for less than a full work week, in increments of one full day or one-fifth of the weekly benefit. Employees may take the maximum benefit length in any given 52-week period.

An eligible employee who has given birth may opt to receive both disability and PFL benefits during a post-partum period, but may not receive both benefits at the same time (i.e., the employee may apply for disability benefits based on the employee’s own disability following the birth of the child, and then subsequently apply for PFL benefits for purposes of bonding with the child).

An employee who is eligible for both disability benefits and PFL benefits during the same period of 52 consecutive calendar weeks cannot receive more than 26 total weeks of combined disability and PFL benefits during that period of time.

Employee Rights When Utilizing PFL Benefits.

When returning from PFL, an employee is entitled to be restored to the position the employee held when the leave began, or to a comparable position with comparable employment benefits, pay and other terms and conditions of employment.

An employee who has health insurance via the employee’s employer is entitled to the continuation of group health insurance coverage during PFL on the same terms as if the employee had continued to work. Any portion of health plan premiums that had been paid by the employee prior to PFL shall continue to be paid by the employee during the PFL period.

An employer may permit an employee to use vacation or sick leave during PFL so as to receive full salary, but cannot require an employee to do so.  In the event that an employer offers and an employee exercises the option to charge all or part of the employee’s PFL time to unused paid time off, the employer may request reimbursement of any PFL due from the PFL carrier.

Employers are prohibited from discriminating or retaliating against employees for taking or asking about PFL.

The above is an overview of certain key provisions of the New York PFL law.  Many more details are contained in the final regulations adopted by the New York Workers’ Compensation Board. Given the complexities of the PFL law, companies should consult legal counsel for guidance in drafting and implementing their policies under the PFL law.

Andrea Bernstein is a member of the labor and employment practice at SWA and represents U.S. companies with respect to all facets of U.S. employment law. Andrea has significant experience litigating employment cases on behalf of employers, with emphasis on litigation of restrictive covenants, wage and hour matters, and discrimination, harassment, and retaliation claims. She also has broad experience in counseling HR personnel and in-house counsel on legal compliance and risk avoidance issues in the employment law context.

Andrea can be reached at 646 328 0775 or abernstein@swalegal.com

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Andrea R. Bernstein. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.