The New York Paid Family Leave Law (“NYPFL”) takes effect on January 1, 2018 and every employer statewide must take action. To comply with the new law, employers should review leave policies and update employee handbooks, policies and practices.
The NYPFL will provide partial pay to New York employees during a statutory period spent providing care for a family member with a serious health condition, bonding with a child during the first 12 months after the child’s birth or adoption, or attending to specific obligations arising because the spouse, child, or parent of the employee is on or preparing for active duty in the United States armed forces. All employers, large and small, are subject to the new law. Full-time employees are eligible once they have worked 26 or more consecutive weeks. Part-time employees become eligible after working for 175 days.
The State Insurance Fund provides payments to employees who are eligible under the NYPFL. The law amends the New York State Workers’ Compensation Law and is wholly financed by deductions directly from employees’ wages. Any employer covered by the New York Workers’ Compensation Law must fund the NYPFL by deducting contributions from employees’ pay, and allow eligible employees to take paid family leave. While an employee is collecting workers’ compensation payments (s)he is not eligible to receive payments under NYPFL.
Benefits under NYPFL will be phased in over four years, beginning January 1, 2018, as follows:
|January 1, 2018||January 1, 2019||January 1, 2020||January 1, 2021|
|Up to 8
|Up to 10 workweeks||Up to 10
|Up to 12
|50% of the employee’s average weekly wage, capped at 50% of the state’s average weekly wage||55% of the employee’s average weekly wage, capped at 55% of the state’s average weekly wage||60% of the employee’s average weekly wage, capped at 60% of the state’s average weekly wage||67% of the employee’s average weekly wage, capped at 67% of the state’s average weekly wage|
Funding and Eligibility for NYPFL
- Beginning on or after July 1, 2017, NYPFL coverage will be included under the disability policy all New York employers must carry. The insurance premium will be fully funded by employees through payroll deductions.
- The maximum amount of deduction per employee per pay period is capped at $1.65/$85.56 for 2018. All employees must participate in NYPFL.
- The only exception is for employees who are at a job that will never reach 26 continuous weeks or 175 days of work needed to qualify for NYPFL. Employers must provide ineligible employees the option to file a waiver to exempt them from making contributions for NYPFL coverage. Employers may make deductions from the pay of employees who do not file such a waiver. If an employee later becomes eligible due to a change in work hours, the waiver can be revoked.
- Prior to receiving benefits under NYPFL, employees must present certification from a health care provider treating the employee’s family member or, if the leave follows birth of a child, the health care provider treating the mother of the child. For adoption and foster care, different types of documentation must be presented. For a qualifying military event the employee will need to present copies of duty papers or other supporting documentation.
- During NYPFL, employers must maintain employees’ existing health benefits for the duration of the leave as if employees had continued to work. This means that employees must pay their portion of the insurance premium for the duration of the leave.
- The NYPFL also requires employers to reinstate employees returning from NYPFL to their prior position of employment or to a comparable position with comparable pay, benefits, and other terms and conditions of employment.
- NYPFL does not require employers to allow employees on NYPFL to continue to accrue benefits, such as sick or personal days, or seniority rights while out on leave.
- Employers must allow employees to take NYPFL as intermittent leave in increments of no less.
The New York State Workers Compensation Board (the “Board”) has issued the following forms that may be used by employees to request NYPFL benefits:
- Bond with a Newborn, a Newly Adopted or Fostered Child; https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf
- Care for a Family Member with a Serious Health Condition https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf
- Assist Families in Connection with a Military Deployment https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf
The Board also issued a form for temporary or part-time employees who work less than 26 consecutive weeks or less than 175 days that may opt-out of NYPFL:
- The Employee Paid Family Leave Opt-Out and Waiver of Benefits https://www.ny.gov/sites/ny.gov/files/atoms/files/PFLWaiver.pdf
Finally, the Board issued 2 forms to be used by employers who are exempt from coverage but provide NYPFL voluntarily:
- Employer’s Application for Voluntary Coverage (No Employee Contribution) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-135_1017.pdf
- Employer’s Application for Voluntary Coverage (Employee Contribution Required) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-136_1017.pdf
Interplay Between NYPFL and Existing Leave Policies
- If an employer’s other leave policies are less restrictive than the rules under the NYPFL, an employer can require an employee to follow its existing policies.
- If an employer has a paid family leave program that fulfills or exceeds the NYPFL, an employee will receive only the employer’s benefits and the employer can recoup the NYPFL benefits directly. However, the NYPFL does not permit employers torequire employees to use their available sick or vacation time towards the NYPFL time. This is in contrast to the FMLA which allows employers to require employees to exhaust paid sick and/or vacation time concurrent with any leave taken under the FMLA.
- In addition, like New York state disability payments, employers that pay full salary during a period of paid family leave may request reimbursement by their insurance carrier for advance payment of benefits.
Key Distinctions Between NYPFL, FMLA and State Disability Benefits
- NYPFL is not available for an employee’sown serious health condition, although FMLA and New York State disability leave may cover such conditions.
- NYPFL only begins after the birth of a child, therefore it does not cover leave taken for pregnancy related conditions. FMLA and New York State disability leave may cover such conditions.
- Almost all employees are covered by the NYPFL, while only employees who work for employers that have 50 or more employees are covered under the FMLA.
- Employees must use FMLA and NYPFL concurrently. Employees may not stack leave time to take more than 12 weeks, or the maximum duration of leave permitted at the time by the phase-in schedule.
- Employees must use NYPFL and New York State disability benefits concurrently. Employees who also are eligible for disability benefits may receive only a combined total amount of 26 weeks of disability benefits and NYPFL benefits in a 52-consecutive calendar week period.
Employers have between now and January 1, 2018 to prepare for these major changes to the law concerning family leave in New York. We recommend speaking with your insurance carriers regarding adding NYPFL coverage to your policies and asking your payroll provider to add another deduction for NYPFL. If you use a PEO, you should take this time to check with your PEO to ensure they are prepared to comply with the new regulations once they go into effect.Read More
Beginning October 31, 2017, New York City will join a growing number of cities and states across the nation that ban its employers from making inquiries into prospective employees’ salary history. This new law was designed to address gender-based wage gaps, and is part of a trend in recent wage equity legislation that has been passed in California, Delaware, Maryland, Massachusetts, Oregon and Philadelphia. Similar laws are pending throughout the country, including the federal “Pay Equity for All Act of 2017.”
The NYC law prohibits employers from the following:
- Directly asking applicants for their past salaries.
- Asking former employers, headhunters, recruiters or references for the prospective employee’s salary history.
The NYC law does NOT apply to the following:
- Internal candidates who are applying for a transfer or a promotion with their current employer.
- Public employees whose salaries are determined by collective bargaining agreements.
- Voluntary disclosures by the job applicant to the prospective employers of the applicant’s salary history.
- Objective measures of the applicant’s productivity such as revenue, sales or other production reports, so long as the employer does not ask how that productivity translated into compensation. (Employers may ask about profits generated but not about commission percentage the applicant received.)
- Unvested equity or deferred compensation that an applicant would forfeit or have cancelled by the applicant’s resignation from his or her current or former employer.
The NYC law applies to the following employees and employers:
- Employers of all sizes, if they are hiring applicants in NYC are required to follow the law.
- Most applicants for new employment in New York City, regardless of whether the position is full time, part-time or an internship, including independent contractors who do not have their own employees.
How to prepare for the new law:
- Review existing policies and practices to ensure compliance with the new legislation.
- Review job applications and background check forms to ensure there are no requests for salary history.
- Train human resource staff and hiring managers about permissible compensation questions to ask during an interview.
- Coordinate with outside vendors such as recruiters and background check providers to ensure they will comply with the new law.
- Implement a process to document voluntary disclosure of salary history by an applicant.
Employers who violate the new law may be required to pay damages, a fine and/or be subject to additional affirmative relief such as mandated training and posting requirements. For questions about this new law, please contact Aliza Herzberg or Lori Barnea.Read More
Herzberg Law Group was the latest women’s owned firm to be featured in the New York Law Journal and The American Lawyer’s series on female practice leaders leaving big law to open boutique law firms. To read more about what differentiates Herzberg Law Group from other employment practices and firms, and to find out about Herzberg and Barnea’s goals for the Herzberg Law Group’s employment practice, click here.Read More