United States: New York Workers Compensation Board Releases Final Regulations For Paid Family Leave Law

New York's Workers Compensation Board (the "Board") has just released the much-anticipated final regulations for the Paid Family Leave ("PFL") law, with few substantive changes from the last round of revised regulations. The Board's written response to the public comments indicates, however, that further guidance may be forthcoming as to the meaning and application of the final regulations. For more detailed information about the law and regulations, see our prior alerts on the law's passage, the proposed regulations, revised regulations, and employee contribution amount.

Key changes set out in the final regulations follow.


Employees who work 20 or more hours per week become eligible for PFL after 26 consecutive work weeks. Employees who work fewer than 20 hours per week become eligible for PFL after 175 days of employment.

The final regulations clarify that the use of scheduled vacation time or other paid time off approved by the employer should be counted towards both the 26 consecutive work week and 175 days-worked thresholds for PFL eligibility. In the same vein, the regulations clarify that periods of statutory short term disability will not be counted as weeks of employment or days worked for determining eligibility for PFL.

Under the final regulations, employers are required to provide employees with the option to waive PFL benefits where the employee's schedule does not allow the employee to reach the thresholds for PFL eligibility listed above. Employees are not, however, required to sign the waiver. The Board did not alter the provision that if an employee's schedules changes, such that he or she will become eligible for PFL, the previously signed waiver becomes invalid within eight weeks of the change and the employer can recoup the employee contribution amount back to the date of hire, after notifying the employee of its intent to do so.

The final regulations clarify that where periods of absence from employment are due to the nature of the employment, such as semester breaks, and when employment is not terminated during these periods, the breaks do not restart the period of employment for purposes of eligibility for paid family leave.

While no change was made with regard to eligibility based on the location of employees, the Board clarified that employees who work in New York State, with only incidental work outside the state, are eligible for PFL, whereas employees who work in another state, who only incidentally work in New York, are not covered. The Board offered the following guidance, as well: if an employee does not perform his or her work in any one particular state, he or she is eligible if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York. The Board indicated it will add additional examples as they arise to the published answers to frequently asked questions on the program's webpage.

Complaint Procedure:

The final regulations require that before an employee may file a complaint of discrimination with the Board under Workers' Compensation Law Section 120, he or she must first file a written request for his or her employer to come into compliance with PFL. The written request is a condition precedent to bringing a discrimination claim, and an employer's response to the request (or expiration of 30 day time period in which to respond) triggers an aggrieved employee's two year statute of limitations period to file a discrimination claim with the Board.

There is no time limit, however, in which to file this written request. The time in which to file does not appear cabined by the two year statute of limitations period. In conjunction, we read these requirements as creating a virtually unending statute of limitations period for PFL claims to be brought before the Board. Although Seyfarth submitted a comment to the Board on this issue, the Board did not provide a substantive response.

Interplay With FMLA and NYC ESTA:

The final regulations did little to further clarify the interplay between PFL and Family Medical Leave Act ("FMLA"). For example, PFL requires that an employee be returned to the "same or comparable" position following leave. FMLA requires that an employee be returned to the "same or equivalent" position following leave. Especially during periods when FMLA and PFL run concurrently, this differing standard is likely to cause confusion. Seyfarth Shaw requested guidance on whether "same or comparable" has the same meaning as the FMLA's "same or equivalent" language. The Board stated that it will issue further guidance on this, but did not revise the regulation.

The final regulations also did not clarify how New York City employers should treat leave under the NYC Earned Sick Time Act ("ESTA") when leave under ESTA is taken for a PFL qualifying reason. In particular, ESTA requires in most cases that time off be provided at full pay. In contrast, PFL requires employees to be given the choice of using accrued leave or to receive PFL benefits from the carrier. The regulations remain unclear on this point.

What's Next for Employers:

Employers must implement a PFL policy and obtain coverage for PFL benefits before the effective date of January 1, 2018. Now that final regulations have been issued, employers should begin drafting policies and considering PFL's interplay with other leave policies, especially FMLA. As of July 1, 2017, employers are free, but are not required, to deduct employee contributions towards the cost of a PFL premium. Be on the lookout for additional Seyfarth alerts on this topic and an upcoming webinar covering the final regulations.

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.