United States: Final Regulations For New York State Paid Family Leave Law Adopted

The New York Workers Compensation Board (the "Board") has adopted final regulations for implementation of the New York Paid Family Leave Law ("PFLL"). The final regulations are effectively immediately.

Long awaited by New York employers, the final regulations make several changes to the prior proposed regulations, which were issued by the Board in May and discussed in detail in our prior blog post.

The following are some of the highlights of the final regulations, as well as the Board's Assessment of Public Comment issued in connection with the final rules (the "Assessment").

July 1, 2017 Start Date for PFLL Wage Deductions Confirmed

As we had previously discussed, an outstanding question for many employers was whether the final regulations would retain the July 1, 2017 date set forth in the proposed regulations for employers to be permitted to begin implementing the necessary wage deductions for employee contributions under the PFLL (for benefits beginning on January 1, 2018). The final regulations do not make any changes to the July 1 date. Therefore, employers are permitted to begin employee wage deductions under the PFLL at any time between now and January 1, 2018, when paid family leave ("PFL") benefits become available to eligible employees.

In its Assessment of the revisions made to the final regulations, the Board states that "[t]he statute does not require notification of deductions to employees." However, Sections 380-7.2(a) and (e) of the final regulations do include general posting and written notice requirements for employers, which remain unchanged from the prior proposed regulations.

Calculation of Eligibility Period for Employees With Recurring Break Periods During Employment

The final regulations include an amendment to Section 380-2.5(a), addressing employee eligibility requirements, stating that an employee who is regularly scheduled to work 20 or more hours per week will become eligible to take PFL after 26 consecutive weeks of employment, but that "such consecutive weeks may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence." The Board noted in its Assessment that the new section was added "to clarify that certain jobs, like professors, have built in breaks and that these do not restart the period of employment for purposes of eligibility for paid family leave."

Benefit Calculation Clarifications

The final regulations include amendments to Section 380-2.5(c), addressing how to compute an employee's benefit rate for purposes of PFL taken in single-day increments. The final regulations now indicate that the week the employee goes on leave should not be counted as part of the 8-week look back period when calculating the employee's average weekly wage, so as to avoid reducing the amount of the employee's PFL benefit based on the employee's partial absence during that week. The final regulations also clarify that, for purposes of converting the employee's average weekly wage to an average daily wage, the average number of days worked per week by an employee can take into account fractions of a day.

Employers Now Mandated to Offer PFLL Waiver to Certain Employees

The final regulations include an amendment to Section 380-2.6(a), addressing the option for employees whose regular employment schedule will not meet the minimum eligibility criteria under the PFLL—i.e., 26 consecutive weeks for employees regularly scheduled to work 20 or more hours per week, and 175 work days in a consecutive 52-week period for employees regularly scheduled to work less than 20 hours per week—to waive their right to PFL benefits (and in turn be relieved of the obligation to make PFLL contributions via payroll deductions).

Whereas the proposed regulations stated that employers "may" provide such employees with the option to waive PFL benefits, the final regulations now state that employers "shall" provide such employees with the option to file a waiver, indicating that employers will now be required to offer a waiver in such cases. However, the decision as to whether to execute a PFL waiver remains in the sole discretion of the employee.

Clarification on Interplay of the PFLL and New York City Earned Sick Time Act

In its Assessment, the Board addresses Section 380-6.2(a) of the regulations, which permits an employer to offer, and the employee to elect, to use otherwise available and eligible paid time off concurrently with PFL in order to receive full salary during the leave period. While not resulting in any change to the text of the regulations, the Board affirms in the Assessment that "[i]f the rules governing an employee's use of sick time allow them to use the accrued time off to care for a serious [sic] ill family member"—as is required for employees covered by the New York City Earned Sick Time Act—such time "falls within Section 380-6.2(a) of the . . . regulations" and an employee may elect to use such paid sick time concurrently with PFL and receive 100% of his or her salary during that period.

The Board further reiterates, however, that "[l]eave for an employee's own illness does not qualify as paid family leave" under the PFLL, and, pursuant to Section 206(3) of the Workers Compensation Law, an employee therefore would be precluded from receiving both PFL benefits and sick pay for the employee's own illness during the same period.

52-Week "Look Back" Period Clarified for First Year of Implementation

In the Assessment, the Board provides some clarification on Section 380-2.5(f) of the regulations, which states that an employee who is eligible for both statutory short term disability ("STD") benefits and PFL benefits during the same 52 consecutive week period (computed retroactively from the start of any leave) is limited to a total combined 26 weeks of STD and PFLL benefits during that 52-week period. While not resulting in any change to the text of the regulations, the Board notes in its Assessment that Section 380-2.5(f) should be interpreted to count any periods of statutory STD an employee has taken in 2017 toward the employee's total combined STD and PFLL benefit available in 2018. That is, during the first year of PFLL implementation in 2018, the 52-week "look back" period will extend back into 2017.

Further Guidance on "Comparable Position" Reinstatement Standard Pending

While not resulting in any change to the text of the regulations, the Board states in its Assessment that it plans to issue further guidance on what it means for an employee to be "restored to a comparable position" upon return from PFL as required under Section 203-b of the Workers' Compensation Law. Specifically, the Board indicates that it plans to address whether and to what extent the "comparable position" standard tracks the meaning of the "same or equivalent position" reinstatement standard under the federal Family and Medical Leave Act (FMLA).

* * *

In addition to the final regulations, the Board has indicated that it will be providing further guidance and examples "as they arise" to the frequently asked questions section of the official Paid Family Leave Law website.

We will, of course, continue to report on further developments.

Final Regulations for New York State Paid Family Leave Law Adopted

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.

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