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Client Alert
NYS Paid Family Leave: Are You Prepared?

Last year, New York passed legislation enacting a 12-week Paid Family Leave (PFL) program effective January 2018. Described as the “nation’s strongest and most comprehensive Paid Family Leave policy,” this program will be provided through New York State’s existing Disability Benefits Law (DBL) and will make paid family leave available for all private sector workers. PFL will also give eligible employees the right to a leave of absence and guaranteed reinstatement, even if they do not have federal Family and Medical Leave Act (FMLA) protection. Covered employers include those that have one or more employees employed in New York on each of at least 30 days in any calendar year.

Employees who have worked for their employer for at least 26 weeks (175 days for part-time employees) have the right to take time off for the following reasons:
  • to care for a family member, including physical or psychological care, with a serious health condition
  • to bond with a new child during the first 12 months after the child’s birth or after the placement of the child for adoption or foster care with the employee, or
  • to handle certain obligations arising from a family member's military service or deployment that constitutes a “qualifying exigency” as interpreted under the FMLA
For purposes of family leave, “family member” is defined as a child, parent, grandparent, grandchild, spouse or domestic partner. The definition of a “serious health condition” is similar to the definition under the FMLA.

Unless an employer chooses to permit otherwise, any paid family leave benefit must run concurrently with an employee’s available entitlement under the FMLA. Additionally, no employee is entitled to more than 12 weeks of paid family leave benefits within a 52-week calendar period.

The amount of time off and benefits available will increase over time and will be phased in as follows:
Date # of Weeks Benefit
Jan. 1, 2018 8 Weeks 50% of employee's average weekly wage
Jan. 1, 2019 10 Weeks 55% of employee's average weekly wage
Jan. 1, 2021 12 Weeks 67% of employee's average weekly wage

(The State Superintendent of Financial Services will have discretion to delay increases in the benefit level if the increases will negatively impact the state’s economy.)

Importantly, an employee’s paid family leave benefits are capped at the state average weekly wage. For example, effective Jan. 1, 2018, eligible employees may receive up to 50 percent of their average weekly wage during family leave, not to exceed 50 percent of the state average weekly wage.

Unlike short-term disability “DBL” benefits, when an employee is eligible for paid family leave, there is no waiting period before employees can receive PFL benefits. PFL benefits may be received on an intermittent basis (less than a full workweek) in increments of one full day (one-fifth of the weekly benefit).

Employees may choose, but cannot be required, to use accrued and available vacation or other paid time off (PTO) to receive full salary or wages while on family leave. Should an employee choose to use PTO for statutory leave, the employer can request reimbursement from the employee for any PFL benefits the employee received from New York State during that period. Additionally, if it is currently an employer’s practice to pay employees full salary while out on family leave, the employer is entitled to seek reimbursement from the insurance carrier providing PFL benefits.

Employers should stress that employees cannot collect mandatory DBL benefits and PFL benefits concurrently, and that no employee is entitled to more than 26 weeks of combined disability and family leave benefits during a 52-consecutive calendar week period.

Importantly, employers will be required to continue their employees' health insurance during leave. Additionally, an employee may not lose any benefits accrued during employment prior to taking family leave, but the PFL law doesn’t entitle employees to continue to accrue PTO while out on family leave.

When the need for family leave is foreseeable, an employee may be required to provide his or her employer with 30 days’ advance notice of the intention to take family leave. If the need for leave is not foreseeable, the employee must provide notice as soon as practicable. An employee may be required to provide medical certification completed by a health care provider to support the need for family leave.

As noted earlier, an employee who takes time off for a permitted PFL reason must be reinstated to his or her original position upon return to work, or reinstated to a comparable position with equal pay, benefits and other terms and conditions of employment. In addition, an employer may not retaliate against an employee who takes paid family leave.

Moreover, employers will be required to conspicuously post a notice in the workplace to indicate their compliance with the paid family leave requirements. In addition, employers must provide employees who take eight or more consecutive days of family leave with a written notice of their rights under the PFL law, including information on how to file a complaint. An employer that fails to comply with the requirements of the paid family leave law is guilty of a misdemeanor and may face penalties, including fines and imprisonment.

Employers should also note that income replacement will have no significant cost to businesses, as PFL coverage will exist as a rider to current New York State mandatory DBL coverage, the full cost of which will be paid through nominal payroll contributions of the employee. New York will be setting the maximum employee contribution by June 1, 2017 and shortly thereafter, carriers will announce broker commissions. Employers are permitted to begin deducting payments for PFL premiums beginning July 1, 2017.

Employers must ensure appropriate processes are implemented in commencing the payroll deductions beginning July 1st. Questions can be directed to your DBL insurance providers and/or brokers, and more information can be found here.

Further, employers should begin to review and revise their PTO policies, family and medical leave policies, employment agreements and handbooks with the help of experienced employment counsel to ensure full compliance with all of the new PFL program’s requirements.
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