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
 
In association with
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
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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.