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
 
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.