United States: Proposed Regulations Issued for New York State Paid Family Leave Law

The New York Workers Compensation Board has issued a proposed rule for implementation of the statewide Paid Family Leave Law ("PFLL"), which goes into effect on January 1, 2018.

As we previously reported, the PFLL will require employers to provide all eligible full- and part-time employees with paid, job-protected leave to: (i) care for a newborn or newly adopted or placed child; (ii) care for a family member with a serious medical condition; or (iii) deal with certain exigencies arising when a family member is called to active military service.  The amount of leave and payment percentages available under the PFLL will be phased in, beginning in January 2018 with 8 weeks of paid leave at a rate of 50 percent of the individual's average weekly wage (up to a designated cap), and culminating in 2021 with a requirement to provide up to 12 weeks of paid leave at a rate of 67 percent of the individual's average weekly wage (again subject to a cap).  The program will be funded entirely through employee payroll deductions.

The Workers Compensation Board's proposed rule—which is subject to a 45 day comment period before final publication—addresses a range of issues regarding the implementation of the PFLL that were left unanswered by the statutory text. Perhaps most helpful for employers, the proposed rule fills in many of the blanks regarding how paid family leave ("PFL") will interact with leave otherwise covered under the federal Family and Medical Leave Act ("FMLA").  The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave for several covered purposes, three of which—caring for a newborn or newly adopted or placed child, caring for a family member with a serious medical condition, and managing military service-related exigencies—are also covered under the PFLL. Notably, however, while the federal FMLA requires unpaid leave for an employee's own serious medical condition, New York's PFLL will not apply to such leave (although leave for an employee's own medical condition may be covered under the New York Short Term Disability law).

Among the highlights of the proposed rule:

  • employers would be permitted to begin implementing the necessary wage deductions for employee contributions under the PFLL as early as July 1, 2017, for coverage beginning on January 1, 2018.  The maximum employee contribution amount is expected to be set by June 1, 2017.
  • several key terms under the PFLL are defined, including "average weekly wage" (for purposes of calculating benefit amounts) and "serious health condition." The definition of a "serious health condition" under the proposed rule tracks the definition of that term under the FMLA.
  • the term "fifty-two consecutive weeks" (for purposes of defining the 12-month period for calculating how much PFL an employee has available at a given time) would be defined as "52 consecutive weeks or calendar weeks . . . computed retroactively with respect to each day for which benefits are currently being claimed." Thus, the proposed rule establishes a tracking method that mirrors the FMLA's "rolling backwards" method (in which the 12-month period for determining how much FMLA leave an employee has available is measured backwards from each time an employee uses FMLA leave).

    • As a result, employers currently using one of the other permissible methods for calculating the 12-month period under the FMLA (e.g., calendar or fiscal year, employee anniversary date, or the "measure forward" method) could experience administrative challenges in tracking leave that qualifies under both the PFLL and FMLA. The use of different tracking systems for PFL and FMLA leave may also result in employees being able to "stack" leave time for purposes that are covered under both the PFLL and the FMLA and extend the total amount of job-protected leave available for a single covered event. For example, if an employer uses a calendar year method for FMLA tracking, an employee on leave for a family member's serious health condition may exhaust PFL in December of a given year using the PFLL's rolling backward method but will receive a new allotment of FMLA leave on January 1, which can then continue to be used for the same covered event (so long as proper certification is provided to the employer as required).
  • "part-time employees" would be defined under the PFLL as those on a work schedule of less than five days per week. Part-time employees become eligible for PFL on the 175th day of such regular employment, whereas full-time employees become eligible for PFL after 26 consecutive work weeks of employment.
  • for purposes of calculating the 26 week/175 day eligibility threshold for PFL benefits, approved vacation, sick, personal or other time away from work would be counted so long as the employee is still making contributions to the cost of PFL benefits during that time. However, periods of temporary disability under the New York Short Term Disability law would not count toward determining PFLL eligibility. The proposed rule further states that an employee may not receive both short term disability and PFL benefits for the same period of time and is entitled to a combined total of 26 weeks of short term disability and PFL benefits during the same period of 52 consecutive weeks.
  • a waiver would be available for any employee whose regular work schedule is less than 26 weeks or 175 days in a 52 consecutive week period and therefore would never meet the minimum PFLL eligibility requirement. The waiver would exempt the employee from the obligation to make contributions to the cost of PFL benefits and would also exempt the employer from the obligation to provide PFL benefits for the employee so long as long as the waiver remains in effect. The waiver would be deemed revoked within 8 weeks after any change in the employee's regular work schedule that would require the employee to continue working for 26 weeks or 175 days in a 52 consecutive week period. The employee would then be required to begin making the necessary contributions for PFL coverage, including any retroactive amounts due from date of hire.
  • maximum PFL usage by part-time workers taking PFL in single-day increments would be reduced based on the average number of days the employee works per week relative to a full 5-day work-week. So, for example, for calendar year 2018, a part-time employee who works 3 days per week would be eligible for single-day PFL usage equal to 60% (or three-fifths) of the 40 day/8 week total available to full-time workers. Thus, part-time employees working 3 days per week would be eligible for a maximum of 24 days in any 52 consecutive week period. Part-time employees taking PFL in weekly increments would be eligible for the maximum number of weeks of leave in any 52 consecutive week period (e.g., in 2018, a total of 8 weeks in any 52 consecutive week period) just as full-time employees.
  • similar to the FMLA, PFL entitlement for the birth, adoption or foster placement of a child would expire at the end of the one year period following the birth, adoption or placement. An otherwise eligible employee whose child is born or placed before January 1, 2018 would still be eligible to take PFL starting on January 1, so long as any PFL for such purposes concludes within 12 months after the birth or placement.
  • employees seeking to take PFL would be required to provide notice to their employers on the same terms as required under the FMLA. For foreseeable leave, an employee would be required to provide the employer with at least 30 days advance notice before leave is to begin. If 30 days advance notice is not practicable for reasons such as a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice would need to be given as soon as practicable.
  • for employees entitled to receive family leave benefits under a collective bargaining agreement, the employer is relieved of providing PFL benefits so long at the CBA provides for benefits "at least as favorable" as those set forth in the PFLL.
  • employers would be required to provide written notice to employees of their rights and obligations under the PFLL in their employee handbook or written leave policy or, if the employer does not currently have a written handbook or policy describing leave provisions, would be required to separately provide written guidance to all employees regarding the PFLL. The proposed rule also establishes a notice posting requirement, in a form to be determined by the Chair of the Workers' Compensation Board.
  • employers who fail to provide PFL coverage would be liable for a fine up to 0.5% of weekly payroll during the lapse, and an additional sum of up to $500. If an employer fails to provide coverage and an employee takes family leave, the employer would be liable for the payment of the benefits in full and would waive the contribution amount for that time. If an employer fails to continue health insurance benefits for an employee during PFL, such employer would be liable for the employee's medical costs during the time of PFL.
  • claim-related disputes under the PFLL, including claim denials and allegations that employers failed to maintain appropriate PFL insurance, would be subject to arbitration pursuant to a process set forth under the regulations.

Comments on the proposed rule will be accepted through April 7, 2017. Comments may be submitted online.

Along with the issuance of the proposed rule, the state has also launched a new website highlighting key details of the PFLL for both employers and employees.  The state has also implemented a Paid Family Leave Helpline (1-844-337-6303) to answer questions about the program.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.