United States: What Employers Need To Know About New York's New Paid Family Leave Law

Effective January 1, 2018, the new New York Paid Family Leave Law (NYPFLL) will provide eligible employees who work in New York State with up to eight weeks, increasing over time to 12 weeks, of job-protected leave for the following "qualifying events":

  1. the birth, adoption or foster placement of a child;
  2. the need to care for a spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild with a serious health condition; and
  3. when a spouse, child, domestic partner or parent is on or is called to active military duty.

During such leave, employees will be eligible to receive a portion of their compensation fully funded through employee payroll deductions and will be entitled to continued health insurance if they continue to pay their portion of premiums.

Unlike the federal Family and Medical Leave Act (FMLA), which covers employers with at least 50 employees, the NYPFLL will apply to nearly all New York employers, even if they have only one employee for at least 30 days in any calendar year. Thus, employers that are not covered by the FMLA must implement leave policies prior to the NYPFLL's effective date, among other requirements. New York employers that are already covered by the FMLA must also review and revise their policies, as the NYPFLL provides more expansive rights in some areas, including but not limited to different employee eligibility requirements and more covered family members for whose care employees may take leave.

NYPFLL Basics

  • In addition to providing job-protected leave, the NYPFLL provides employees with some compensation during such leave. It is an extension of the New York State Disability Benefits Law and operates in a similar manner to required short-term disability benefits, although paid family leave benefits are entirely employee-funded through payroll deductions.
  • Employers are required to provide paid family leave benefits through a rider to their private disability insurance policy, participation in the state insurance fund, or self-insuring. Election to self-insure must be made by September 30, 2017.
  • Employers may start deducting 0.126% of an employee's weekly wage, up to the statewide average (or about $85 per year) as of July 1, 2017.
  • Unlike under the FMLA, in which employees must be employed for 12 months and have worked at least 1,250 hours in the previous 12-month period, to be eligible for both leave and benefits under the NYPFLL, employees must be employed full time for 26 weeks or part time for 175 days (not counting any period of temporary disability). Employees may file a waiver of payroll deductions if they do not anticipate working for this length of time.
  • The provisions of the NYPFLL will be phased in as follows:

    • As of January 1, 2018, employees will be entitled to eight weeks of paid leave during a 52-week period and will receive at least 50% of their average weekly wage or 50% of the state average weekly wage (determined by the New York State Department of Labor), whichever is less;
    • As of January 1, 2019, employees will be entitled to 10 weeks of paid leave during a 52-week period and will receive at least 55% of their average weekly wage or 55% of the state average weekly wage, whichever is less;
    • As of January 1, 2020, employees will be entitled to 10 weeks of paid leave during a 52-week period and will receive at least 60% of their average weekly wage or 60% of the state average weekly wage, whichever is less and;
    • As of January 1, 2021, employees will be entitled to 12 weeks of paid leave during a 52-week period and will receive at least 67% of their average weekly wage or 67% of the state average weekly wage, whichever is less.
  • In order to file a claim for benefits, employees must complete paperwork similar to that required for temporary disability benefits and submit it to the carrier or self-insured employer. Although there is no provision under the NYPFLL for leave or benefits when the employee has a serious health condition, employees may not receive more than 26 weeks of temporary disability or family leave benefits in a 52-week period.
  • If a qualifying event is foreseeable, employees must provide the employer with at least 30 days' advance notice before their leave is to begin. If the qualifying event is not foreseeable, the employee must give notice as soon as practicable (usually in accordance with the employer's usual and customary requirements). The employee must submit a "Request for Paid Family Leave" form (to be created by the New York State Workers' Compensation Board) and supporting certification. The information required on the certification will vary based on the qualifying event. Failure to provide required notice may result in a delay or denial of leave and/or benefits. Employees may take leave intermittently and must satisfy the same notice requirements as if taking consecutive leave.
  • The NYPFLL expands the list of family members for whose care employees may take leave from the FMLA's parent, child and spouse to also include domestic partner, parent-in-law, grandparent and grandchild. As under FMLA, employees may be required to provide medical documentation evidencing a serious health condition, which is defined the same as under the FMLA. Employees must provide such documentation to the carrier or self-insured carrier in order to receive benefits.
  • Employees may not be required to take their sick leave and/or vacation before using paid family leave. Employers may permit employees to use sick or vacation time in order to receive full pay during leave, and in such case, may be reimbursed for what the employee would have received from the carrier. Employees may also be permitted to supplement their paid family leave benefits with accrued paid time off in accordance with employer policies.
  • Employers covered by the FMLA may concurrently designate an employee's NYPFLL leave as FMLA leave. However, failure to notify employees that FMLA and NYPFLL leave run concurrently may permit employees to receive NYPFLL benefits without taking FMLA leave at the same time. This means an employee may be entitled to up to 24 weeks of job-protected leave (12 weeks under FMLA and 12 weeks under NYPFLL).
  • Employers must maintain employees' existing health benefits while they are on NYPFLL leave, and may require employees to continue to pay their share of health insurance premiums while on leave.
  • Employees who receive benefits must be reinstated to employment upon conclusion of their leave unless the same action would have otherwise been taken (e.g. layoff). Employees who are not so reinstated can file with the chairman of the Workers' Compensation Board (the "Chair") a formal request that they be reinstated. In such case, the employer must either take corrective action (i.e., reinstate the employee) or file a formal response to the employee (or his/her attorney/representative) and the Chair explaining the reason that corrective action will or will not be taken. If the employer takes corrective action to the employee's satisfaction, the Chair will take no further action.
  • The NYPFLL will have tax implications for both employees and employers. The NY State Department of Taxation and Finance outlined some of these issues in an August 2017 Notice. For example, employers will deduct premiums for NYPFLL benefits from employees' after tax wages, and benefits will be paid as taxable non-wage income.

What New York Employers Must Do Now

  • Contact their disability benefits carrier to add NYPFLL coverage or determine whether they want to self-insure, and start making payroll deductions to fund the benefit as appropriate.
  • Update employee handbooks to include information regarding employees' rights under the NYPFLL, including the procedure to file a claim for benefits or, if they have no handbook, provide written materials regarding NYPFLL policies to employees.
  • Post a notice (available from carriers) about the NYPFLL in plain view where applicants and employees will see it.
  • Ensure that there is no retaliation or discrimination against employees for exercising their rights under the NYPFLL.
  • Contact legal counsel to ensure compliance.

The NYPFLL requires New York employers to navigate a new legal landscape they may not have needed to worry about in the past or, at the very least, requires a review and update of current policies. All covered employers should be prepared to change their policies and postings to reflect the requirements of the NYPFLL by the January 2018 effective date.

Click here to read further Insights from Day Pitney

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
Heather Weine Brochin
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