United States: Revised Regulations Issued For New York Paid Family Leave Law

Seyfarth Synopsis: On May 25, 2017, the Workers' Compensation Board, incorporating comments from Seyfarth Shaw LLP and other industry groups, proposed another set of revised regulations for New York's Paid Family Leave Law. The Notice and Comment period extends until June 23, 2017. Paid Family Leave's effective date of January 1, 2018 remains unchanged.

New York's Paid Family Leave Law ("PFL") will be fully phased in by 2021, at which time it will provide eligible employees with up to 12 weeks of job protected paid leave in a 52-consecutive week period. When fully implemented, PFL will entitle eligible employees to receive up to 67% of their average weekly wage or the state average weekly wage, whichever is less. Further details about the law remain available in our prior alerts distributed on March 10, 2017 and April 19, 2016. The key changes included in the revised regulations are as follows.

Paid Family Leave Definitions

In response to comments by industry groups, the revised regulations expand the definition of "wages" to require that tips or gratuities be included as wages if the employee is engaged in employment in which tips and gratuities customarily constitute part of his or her pay. The previous version's definition of wages was limited to the reasonable value of board, rent, housing, or similar advantage received under the contract of hiring in addition to the stipulated money rate.

Employees can still look forward to an expansive definition of "family member," as the Board expressly rejected comments requesting the definition be narrowed to track the FMLA, under which a qualifying family member is a spouse (as defined under state law), child, or parent. Under PFL "family member" includes a child, parent, grandparent, grandchild, spouse, or domestic partner.

Employee Eligibility

The revised regulations further eliminate the labels "Full-Time" and "Part-Time" for employees. The regulations provide instead that an employee of a covered employer whose regular employment schedule is 20 or more hours per week will become eligible to take family leave during his or her employment provided that the employee has been employed for at least 26 consecutive work weeks.

In contrast, an employee of a covered employer whose regular employment schedule is fewer than 20 hours per week will become eligible to take family leave after 175 days of employment. An employee who does not reach these thresholds may waive family leave benefits, as discussed below.

Family Leave Waiver

In line with the elimination of "Full-Time" and "Part-Time" definitions, the revised regulations now specify that an employee of a covered employer may be provided the option to file a waiver of family leave benefits (i) when his or her regular employment schedule is 20 hours or more per week but the employee will not work 26 consecutive weeks, or (ii) when his or her regular employment schedule is less than 20 hours per week and the employee will not work 175 days in a 52 consecutive week period. The other provisions relating to the original waiver provisions are unchanged.

Collective Bargaining Agreements ("CBA")

The revised regulations continue to provide that an employer who provides paid family leave benefits under a CBA is relieved from providing PFL if the CBA provides benefits that are at least as favorable as the benefits under PFL.

The revised regulations clarify that a CBA may provide rules related to PFL that differ from the requirements in the law. The revised regulations permit employees to collectively establish their eligibility for PFL benefits through actual time worked at any employer covered by the CBA, so long as the time period does not extend beyond 26 consecutive work weeks or 175 day thresholds discussed above.

Further, a CBA may provide that the union, acting as the employer, may be responsible for all time records and payroll deductions related to the administration of PFL. Where a CBA does not provide a different rule, the PFL regulations will govern its use.

Use of Leave

The revised regulations change the requirement that when an employee takes intermittent family leave, the employee need only provide notice of the need for leave at the start of PFL. Now, the regulations specify that an employer may require the employee to provide notice as soon as practicable before each day of intermittent leave. The regulations still do not provide for leave to be taken in increments smaller than a day.

In response to a question submitted by Seyfarth Shaw during the initial comment period, a representative from the Board noted that if an employee takes leave pursuant to company policy prior to the effective date of the law, this leave will not count against the employee's maximum benefit, and the employee may take an additional 8 weeks of leave in 2018 for any qualifying reason. For example, an employee may take the maximum amount of bonding leave offered by his or her employer in 2017, and then, so long as it is within twelve months of the birth or placement of a child, take an additional eight weeks of bonding leave in 2018. While this is a one-time exception for 2018 due to the law's effective date, employers should keep this in mind in the coming months.

Use of Accruals for Family Leave Benefits

Critically, the revised regulations now specify that an employer covered by the federal Family Medical Leave Act ("FMLA") that designates a concurrent period of family leave for PFL and FMLA may charge an employee's accrued paid time off in accordance with the provisions of the FMLA. From a practical standpoint, this means that most employers with FMLA policies providing for exhaustion of paid leave before taking FMLA on an unpaid basis will not have to revise their FMLA policies.

However, two important caveats follow. First, only those employers that are covered by the FMLA (i.e., with fifty or more employees in twenty or more workweeks in the current or preceding calendar year, and certain public employers) are permitted to follow FMLA rules on use of accrued but unused time off. Second, these rules will only apply when an employee taking PFL leave is taking it for an FMLA-qualifying reason and the leaves are running concurrently.

The revised regulations remain silent on the interplay between PFL and the New York City Earned Sick Time Act ("ESTA"), which provides up to 40 hours of sick leave, at full pay, to certain New York City employees. Despite our questions as to whether ESTA time may run concurrently with PFL, the Board has not addressed this potential issue in the revised regulations. Absent further clarification from the Board, employers covered by ESTA should assume that eligible employees are entitled to any applicable ESTA time as well as PFL, and that such time may not run concurrently.

Reinstatement Following Leave

The revised regulations still do not address reinstatement obligations for "key employees." Under the FMLA "key employees" may be denied reinstatement based upon a finding that "substantial and grievous economic injury" will result if the employee is reinstated.

Procedure for Complaints Regarding Reinstatement

The earlier version of the regulations required an employee who was not reinstated to their position following a period of PFL to file a formal request for reinstatement with the Board within 120 days of the failure to reinstate. This formal request operated as a condition precedent to bringing a discrimination claim under the Workers' Compensation Law, and an employer's response to the formal request (or expiration of the time period in which to respond) triggered an aggrieved employee's 2 year statute of limitations period to file a discrimination claim with the Board.

The Board received several comments challenging this formal request requirement. In response, the Board eliminated the 120-day requirement for filing a formal request. The Board did not, however, change the requirement that a formal request must be made prior to filing a discrimination complaint at the Board. Similarly, the revised regulations still provide that an employer's response to the formal request (or expiration of the time period in which to respond) triggers an aggrieved employee's 2 year statute of limitations period to file a discrimination claim with the Board. This apparent oversight will certainly be the subject of further comments to the Board.

Weekly Contribution Amounts

On May 31, 2017, the New York State Department of Financial Services ("DFS") adopted final regulations which detail the method by which the employee contribution will be calculated. The amount of the contribution is calculated using a "community rate," which does not consider as a factor the utilization or expected utilization of PFL benefits. Nonetheless, the Superintendent of Financial Services has discretion as to which methodology to use to set the rate, and may prescribe either a defined dollar amount per employee or a percentage of the employee's average weekly wage.

DFS' final regulations continue to provide that the amount of the employee contribution is expected to be set by June 1, 2017, but has not set the amount as of this morning. Look out for an update detailing the amount once it is set.

Conclusion

Employers should be aware that, as of this writing, the permissible amount of the employee contribution is still expected to be set by June 1, and employers have the option of beginning deductions on July 1. Additionally, we have been advised that the Board is continuing to consider the appropriate tax treatment of PFL benefits. As with the last round of regulations, Seyfarth Shaw intends to submit comments on the revised regulations. We will report on PFL taxation policy and the amount of the employee contribution once set, and continue to track the progress of the regulations following the conclusion of comment period.

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.

Authors
Meredith-Anne Berger
Similar Articles
Relevancy Powered by MondaqAI
BakerHostetler
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
BakerHostetler
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions