All Employers Take Note: New York State Implements Paid Family Leave

December 11, 2017 by Herzberg Law Group Thought Leadership 0 comments

All Employers Take Note: New York State Implements Paid Family Leave

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

workweeks

 Up to 10 workweeks Up to 10

workweeks

 Up to 12

workweeks
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.

Administering NYPFL

  • 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.

Documenting NYPFL

The New York State Workers Compensation Board (the “Board”) has issued the following forms that may be used by employees to request NYPFL benefits:

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:

Finally, the Board issued 2 forms to be used by employers who are exempt from coverage but provide NYPFL voluntarily:

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.

For more information regarding the NYPFL or any other employment matter, please contact Aliza Herzberg or Lori Barnea.

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